As local school districts grapple with new federal directives to accommodate transgender students, states outside of New York have filed a suit challenging the guidelines.

On the other side of the issue, the New York State Education Department released guidelines in July 2015 for districts across New York State to follow that are similar to the new federal directives. The memo from the state provided guidance on school obligations to protect students’ privacy; the use of student names and pronouns; access to bathrooms and locker rooms; and when and how to involve family members in talking about a student’s gender identity.

Whether districts adopted student gender identity policies was left up to individual school boards; the state’s Dignity for All Students Act already prohibits discrimination against a student on the basis of gender identity or expression.

Nine states — Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, and Georgia — along with the governor of Maine and the Arizona Department of Education filed the recent suit, which states “the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat.”

The suit is in reaction to a May 13 letter from the federal departments of Justice and Education that affects all public schools and most universities and colleges that get federal funds. The letter was sent after North Carolina and the Justice Department filed suits over North Carolina’s law requiring people in North Carolina to use bathrooms based on the gender assigned at their birth.

The May 13 letter says the departments have received “an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students.” The letter cites Title IX of the Education Amendments, which took effect in 1972, as requiring schools “to provide a safe and nondiscriminatory environment for all students, including transgender students.”

The letter addresses matters like having school staff “use pronouns and names consistent with a transgender student’s gender identity” and says that a transgender student’s education records may be updated to reflect the student’s gender identity and new name.

The letter also lists “sex-segregated activities and facilities” — including restrooms and locker rooms, athletics, single-sex classes, single-sex schools, social fraternities and sororities, housing and overnight accommodations — in which transgender students must be allowed consistent with their gender identities.

“As a condition of receiving Federal funds,” the letter says, “a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.”

The suit lists John B. King — formerly New York’s education commissioner and now the United States Secretary of Education — as the first defendant. It states, “Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights.”

The suit details the history of Title IX, noting that it allows “separate living facilities for the different sexes.” It also claims that Congress has an “enduring understanding that ‘sex,’ as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of Defendants.”

The suit also goes over the recent chain of events in North Carolina starting with the Charlotte City Council on Feb. 22 amending its non-discrimination ordinance to require that every government and business bathroom and shower be simultaneously open to both sexes. The North Carolina General Assembly then passed the Public Facilities Privacy and Security Act, “preempting the Charlotte ordinance and providing that public employees and public school students use bathrooms and showers correlating with their biological sex, defined as the sex noted on their birth certificate.”

The suit, filed in the United States District Court for the Northern District of Texas, asks the court “to hold unlawful and set aside any agency action taken ‘without observance of procedure required by law’” and it seeks a declaration that the new rules are “arbitrary and capricious” as well as invalid. 

While the discussion on transgender issues has been in the news for Guilderland, a large suburban district, because students have spoken to the school board (see related story and editorial), two smaller local districts have been quietly working to accommodate transgender students.

Asked if he’d heard about any transgender concerns at the two suburban Voorheesville schools, Superintendent Brian Hunt said, “Not really.” He doesn’t know how many transgender students are at the secondary school, he said.

“We went to Farnsworth Middle School to attend a workshop and came up with a draft policy,” said Hunt. The policy addressed such matters as how to address transgender students and how to provide privacy in locker rooms and bathrooms.

The Voorheesville School Board adopted its policy in February, Hunt said, adding “a couple of lines” to its policy preventing harassment.

“We use facilities that correspond with gender identification,” Hunt said. “We put up privacy screens for changing areas. This was all discussed in public board meetings.” Hunt said there has been no backlash caused by the changes.

Hunt went on, “This area of law is evolving. We went along with everything in the state guidance, which is fairly parallel with the federal.”

Signs on the bathroom doors at the high school use symbols for male and female. “Generally, they are single-person bathrooms,” said Hunt.

Hunt said the cost was “very minimal.” He explained, “We had a lot of the materials on hand.”

Screens were provided both at the secondary school and for fifth-graders at the elementary school, who change clothes for gym class, Hunt said. “It’s a universal accommodation,” he said of the screens. “You don’t have to be transgender to want privacy.”

Asked if students were using the private areas, Hunt said, “I would think they are taking advantage in a naturalistic way without making an issue.”

At Berne-Knox-Westerlo, Superintendent Timothy Mundell wanted to “keep private” the number of transgender students in the rural district. “All of the scenarios we experienced this year have been at the secondary level,” he said.

“We conform with their wish to be identified in the way they choose,” Mundell explained. “We’ve worked individually with these youngsters and family members to have accommodations.”

Mundell attended a workshop in January on student gender identity. “It’s been a hot topic,” he said.

BKW worked from a policy developed by Erie 1 BOCES, Mundell said. “It aligned with many of our policies,” he said, and the school board adopted it in February. “The policy aligned with the approach we were already taking.”

No changes have been made to the labelling of bathrooms at BKW, Mundell said. “We do have a bathroom we identified as unisex in the nurse’s office. Students are free to choose where to use the facilities. It allows everybody, no matter how they identify, to make the choice for themselves.”

He also said, “We’ve had no locker-room issues come to our attention.” He noted, “At this moment, we have one situation with a female on a male team; it has not been an issue.”

Mundell said there were no expenses for the district in implementing its policy. “There was no physical change to facilities,” Mundell said, adding, “We are planning renovations in the future. I don’t know how the legal implications of the president’s directive will affect our planning.”

BKW does not have a club or support group for its LGBTQ students. “We’re finding students coming forward are comfortable coming to administrators or counselors.” Then, he said, the counselor and teachers use “teamwork to work through a plan.”

Mundell said, “When necessary, our staff adapts to what is needed.” Being a small school helps, he said.

Mundell concluded, “It’s important to listen to kids and work with them as much as we can, teaching tolerance for all perspectives and accommodating the people we serve — our students and their families.”