1. Legal Issues Associated with LGBTQ Students
Lapeer Community Schools
Friday, March 17, 2017
Presented by
Kevin T. Sutton
@LuskAlbertson

2. What the ?!?

3. March Madness Course Offerings: Sociology Psychology Political Science
Constitutional Law
Contracts
Civil Rights Law

4. How Did We Get Here? First Transgender Groups – 1950s and 1960s
Christine Jorgensen / Virginia Prince
Transsexuals / Transvestites – 1970s and 1980s
Rise in LGBT Organizations – 1990s and 2000s
Entertainment Leads the Way – 2010s
The Danish Girl: Actor Eddie Redmayne nominated for Oscar for portrayal of transgender woman in 1920’s who underwent one of the first sex reconstruction surgeries.

5. From the News Desk …
No More King and Queen: High School Makes Homecoming Court Gender-Neutral
South Dakota Lawmaker Proposes Genital Inspections for Trans High School Athletes
51% of US Adults Say Transgender Individuals Should Be Allowed To Use Bathroom of Gender Identity
New Indiana Bill Aims to Fine Transgender People for Using “Wrong” Bathroom
Churches Sue Massachusetts Over Transgender Bathroom Law
NB Athletic Association policy PASSED 1/15/16 -must have documentation from family/friends and Doctor that student truly identifies with that gender -HIGHER standard for transgender girls: have to have had hormone therapy for 1 year -policy reflects “Midwestern values” of the state
“MO District adopts policy for accommodating transgender students, including gender neutral restrooms” -District will designate gender neutral bathroom upon request, all students can use them -students will use locker room of biological sex but other options include online PE, early access to locker rooms, separate enclosed shower and change rooms
Fairfax County, VA: student and pres. of Traditional Values Coalition sue District because its amended anti-discrimination policy that includes gender identity/expression and sexual orientation is more stringent than what state law provides so District doesn’t have this authority
“SD Lawmaker Proposes Genital Inspections for Trans High School Athletes”
WI District cancels plans to read book to elementary students about a transgender student after parents threaten lawsuit
“Chris Christine wants to spare transgender kids the ‘Confusion’ of choosing their own bathroom” -Ben Carson & Mike Huckabee have also come out against transgender people using bathroom of their gender identity on the presidential campaign trail
NC Pizzeria designates gender neutral bathroom to make everyone feel more comfortable -after attending Charlotte city council meeting about non-discrimination ordinance that protected LGBT community that did not pass
New IN Bill Aims to Fine Transgender People for using ‘Wrong’ Bathroom -fine and possible imprisonment for using restroom that does not match gender on birth certificate -the “potty police” -would apply to students in schools
A Woman Complained to Planet Fitness About a Transgender Member. This is How They Responded. -”Judgment Free Zone” = cancelled membership of woman who complained and then told other gym members all about it -MIDLAND, MI

6. Challenges Fear Historical Concepts of Man/Woman Religious Beliefs
Politics (!)
Societal Dynamics/Structure
Social Acceptability
Reactive, Not Proactive Laws
Fear

8. Common Themes Topics: Outcomes (Cases/Guidance): Pronoun/name usage
Bathroom usage
Sports teams/participation
Student records
Overnight stays
Outcomes (Cases/Guidance):
Focused on individual rights
Individual > Group
Law reacting slowly
OCR legislating …
Not So Fast, My Friend
Common Theme topic:
Overnight stays

9. Legislative Sources
Federal, State, and Local Laws

10. Sources of Law - Federal
Title IX
Prohibits discrimination based on sex in any educational program or activity receiving federal financial assistance
Courts have recognized that Title IX’s prohibition on sex discrimination includes protections against discrimination and harassment on basis of failure to conform to sex stereotypes and gender identity
FERPA
Protects student educational records and personally identifiable information from being publicly disclosed; includes birth name
Title VII
Does not expressly prohibit discrimination on the basis of gender identity; however, cases indicate protections in place
Hate Crimes Act [18 USC 249]
Includes “gender identity” and “sexual orientation”
Federal Registrar Regulation – All bathrooms in federal buildings available to transgender individuals
No federal law explicitly protects transgender students from discrimination

11. Sources of Law - State
19 states (+ D.C.) presently have laws prohibiting discrimination against transgender individuals
California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, Wash D.C.
Absent from the list  Michigan
200 cities and counties nationwide that have prohibited gender identity discrimination, including:
Atlanta, Buffalo, Cincinnati, Dallas, Kansas City, Milwaukee, New Orleans, New York City, Philadelphia, Phoenix, Pittsburgh, San Antonio, San Francisco
Absent from the list  Any Major City in Michigan

12. Michigan Law/Guidance
Elliott Larsen Civil Rights Act
Does not include transgender status as a classification protected from discrimination (or sexual orientation)
State Board of Education Position Statements
Model Student Code of Conduct (2015)
Model Anti-Bullying Policy (2016)
Statement on Safe and Supportive Learning Environments for LGBTQ Students (2016)
WHY?
OCR Determinations
Dear Colleague Letters
Nationwide Court Cases

13. The Role of OCR USDE/USDOJ Try to Shape Legal Standards …
And Then They Don’t

14. Input From OCR Policy Position Pretty Clear Dear Colleague Letters
2010, 2011, 2014, 2015 (Obama-Era)
Arcadia Unified School District
Settlement Agreement resolving complaint
“All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX and Title IV.”
Policy Position Pretty Clear
Palatine Update:
OCR found District in violation of Title IX because it didn’t let a transgender girl use the girls’ locker room
Settlement agreement provided a compromise of privacy curtains in the girls’ locker room
OCR said the settlement applied District-wide, not just to the transgender student at issue
District threatened to rescind the settlement
OCR said the settlement only applied to that student so it still stands

15. Input From OCR (cont) May 13, 2016 DCL (Obama-Era) Implications
Definitive, Unequivocal Statement
Names, Pronouns, Restrooms, Locker Rooms, Overnight Stays, Athletics, Amendment of Student Records
“Consistent with their Gender Identity …”
Implications
Applies to all Recipients of Federal Funds
Palatine Update:
OCR found District in violation of Title IX because it didn’t let a transgender girl use the girls’ locker room
Settlement agreement provided a compromise of privacy curtains in the girls’ locker room
OCR said the settlement applied District-wide, not just to the transgender student at issue
District threatened to rescind the settlement
OCR said the settlement only applied to that student so it still stands

16. Legal Challenges to OCR
Legal Overreach by OCR?
Coalition of States Challenge
Based on violations of Administrative Procedures Acts
Injunction Issued by District Court in Texas
[OCR is] enjoined from initiating, continuing, or concluding any investigation based on [OCR’s] interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.
It cannot be disputed that the plain meaning of the term sex … when it was inacted ... meant the biological and anatomical differences between male and female student as determined at their birth.

17. Trump-Era Changes Making America Great Again? DCL Litigation
Curious Timing
DCL Litigation
Reverse Field
February 22, 2017 Guidance
Roll-Back May 2016 DCL
Closing on a Positive Note
OCR Resources:
www2.ed.gov/about/offices/list/ocr/lgbt.html

18. Lawsuits, Lawsuits, Lawsuits!
Legal Actions Coast to Coast are Filed

19. Example of Court Jurisdictions

20. THE Case? Maybe Not … G.G. v. Gloucester County Sch Bd Facts
Procedural History
District Court [824 F.3d 540 (ED Va 2015)]
C of A [2016 US App LEXIS (4th Cir 2016)]
Supreme Court [136 S.Ct (2016)]
Petition for Certiorari filed ; granted
Case was to be heard
Case remanded based on guidance from OCR/DOJ

21. State BOE Guidance
After Much Debate, The Board Weighs In

22. State BOE Statement & Guidance on Safe and Supportive Learning Environments for LGBTQ Students
Initial Draft Released Feb 2016
Public Comment
Extended due to Volume
13,000+ Comments Received
Vote Pushed to September
Revised Guidance
Adopted September 2016
Implication …
Not a legal mandate
Just guidance, suggestions
Topics Covered:
Names/pronouns
Student records
Restrooms
Locker rooms
PE classes
Dress Code
Athletics

23. Policy Statement
“[A] school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

24. Resources for Students
State BOE 
Designate a building-level staff member who is conversant in issues related to sexual orientation, gender identity, and gender expression

25. Name Changes/Pronouns
When requested by the parent/guardian and/or student, school staff should engage in reasonable and good faith efforts to address students by their chosen name and pronouns that correspond to their gender identity, regardless of whether there has been a legal name change. Upon request, the chosen name and gender should be included in the district’s information management systems, in addition to the student’s legal name. District-generated student addresses should also reflect the student’s chosen name, if first names are identifiable in such addresses. These changes inform all staff, including substitute teachers, of the name and pronoun to use when addressing the student, and help avoid inadvertent disclosures.

26. Restroom Usage Nationwide Cases/Guidance Michigan State BOE 
Maine Supreme Court
Colorado Rights Division
Seattle Public Schools
New York Dept. of Ed
Massachusetts Dept. of Ed
Michigan State BOE 
Students should be allowed to use the restroom in accordance with their gender identity. Alternative and non-stigmatizing options, such as an all-gender or single- user restroom (e.g., staff bathroom or nurse’s office), should be made available to all students who request them. While gender-neutral bathroom facilities are often the solution that works best for all students, including transgender students, districts are reminded that current interpretation of federal civil rights laws protect the right of transgender students to use the bathroom of their gender identity if they so choose.

27. Student Records
When requested, schools should engage in reasonable and good faith efforts to change current unofficial student records (e.g., class and team rosters, yearbooks, school newspapers, and newsletters) with the chosen name and appropriate gender markers to promote consistency among teachers, substitute teachers, school administrators, and other staff.
The Michigan School Code requires proof of identity and age for school entry (e.g., birth certificate, passport) but does not address changing names and gender markers in student records. Per communications with the U.S. Department of Education, the gender marker in the pupil’s official record should reflect the gender identity of the student regardless of what appears on the birth certificate.
School districts should comply if transgender students ask the district to amend their secondary educational records, including diplomas and transcripts after graduation, to ensure that those requesting records (e.g., college admissions offices or potential employers) will only see the name and gender marker corresponding to the student’s gender identity.

28. Overnight Stays Not directly addressed by State BOE
OCR Dear Colleague Letter
Housing and Overnight Accommodations
“A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students”
Now gone, so …
Overall Trend?

29. The Parent Trap Student Request / Parents Object What We Hope For
Unfortunate Reality
Dilemma
Outcome
Support

30. MHSAA
The Michigan High School Athletic Association (MHSAA) adopted a Transgender Policy at its May 2012 Representative Council Meeting to approve policies and procedures by which the MHSAA executive director will determine the eligibility of transgender students in MHSAA tournaments; policies and procedures are to be provided to schools when requested on a case-by-case basis
Transgender Student Eligibility – Motion by Karen Leinaar, supported by Pete Ryan, to approve policies and procedures by which the MHSAA executive director will determine the eligibility of transgender students in MHSAA tournaments. Adopted. The document is to be provided to schools when requested on a case-by-case basis.
State BOE  Students should be allowed to participate in interscholastic sports in accordance with their gender identity.

31. What Do We Do Now?
Deciphering the Legal and Political Developments

32. The Legal Reality

33. Practical Considerations**
** = Legal Uncertainty; Best Practices based on Info Available
Term “transgender” is an adjective; using term as verb (“transgendered”) or noun (“transgenders”) can be offensive
Use student’s preferred name and pronouns; instruct other staff members to do the same
Make dress-code guidelines gender neutral; transgender students can dress according to their gender identity as long as it complies with the dress code
Don’t put any requirements on accepting a student’s own gender identity; their word is enough
Allow transgender students to use the restroom (and locker rooms) of the gender of which they identify

34. Practical Considerations**
Allow transgender students to enroll in the PE class of the gender of which they identify
On overnight field trips, allow transgender students to room with other students of the gender of which they identify
Play on sports teams of their preferred gender
Allow students to run for homecoming or prom court of the gender of which they identify
Student may be eligible for a 504 Plan due to the anxiety, depression or psychological distress; 504 Plan can include student’s preferred name and pronoun and appropriate restroom use
Provide resources to families; gender support plan

35. Resources … www.LuskAlbertson.com/Transgender
Model Policy Transgender and Gender Nonconforming Students (2014)
New York Department of Education Guidance (2015)
OSHA Best Practices (2015)
Mass Department of Education Guidance (2013)
State BOE Statement and Guidance on Safe and Supportive Learning Environments for LGBTQ Students (2016)
NSBA Transgender Students in Schools (2016)
OCR Dear Colleague Letters (2016, 2017)
Macy v Holder, 2012 WL (2012)
EEOC position is that an employer violates Title VII when it refuses to hire, fires, demotes or subjects transgender employee to adverse employment conditions because of transgender status, transition, or failure to comport with gender stereotypes
*access to restroom = a condition of employment

36. Questions?

37. Additional Questions? Kevin T. Sutton Direct: (248) 988-5695
Cell: (734)