Nebraska educators have been discussing the legal
considerations involving transgender students and staff members for
several years, and things continue to escalate on the national stage.
We have seen a host of legal and media updates, but we are no closer
to a final resolution on the protections afforded to transgender
individuals. The primary issue remains the same. Agencies such as
the Federal Department of Justice, Department of Education, and now
the U.S. Attorney General take the position that “gender” is a
protected class, much like race, national origin, and sex. Despite
some states passing gender protection laws, no federal or Nebraska
law has made this same determination. The risk of agency
enforcement is always there, but no law applicable to most Nebraska
public schools protects “gender.”
You have no doubt followed the news in Nebraska regarding
transgender students, but here are the highlights from around the
country and the Nebraska Unicameral:
U.S. Attorney General Issues Memorandum on Gender
Identity Protections. On December 15, the U.S. Attorney General
issued a Memorandum discussing the AG’s position on enforcement of
Title VII of the Civil Rights Act of 1964. Schools and ESUs are familiar
with Title VII from their nondiscrimination policies’ listing of protected
classes, such as race, national origin, sex, and age. In short, the AG
believes that “discrimination ‘because of . . . sex’ encompasses
discrimination . . . based on an employee’s transitioning to, or
identifying as, a different sex altogether.” In the opinion of the AG,
gender-identity discrimination may be protected by Title VII’s
prohibition of discrimination based on biological sex.
Board Votes Limiting Use of Facilities. Last month, a Virginia
school board officially voted to limit male and female restroom and
locker room usage to “the corresponding biological genders.” The 6-1
vote also included a provision which required transgender students to
use “alternative private facilities” such as unisex bathrooms and
isolated changing areas. Not surprisingly, the ACLU has filed a
complaint with the Federal Departments of Justice and Education
challenging the board’s actions. This case will certainly highlight the
tension between the federal law, which does not protect from
discrimination on the basis of gender, and the position of the federal
agencies which have chosen to interpret gender protections from
existing discrimination laws.
Damages Paid to Transgender Student. The Maine Supreme
Court became the first state high court to award money damages in a
lawsuit against a school district for discrimination based on gender. In
December, Orono School District was ordered to pay $75,000 in
damages to a transgender student who sued the district over its
decision to limit the student’s use of school facilities. Overall, this is a
unique case because the state of Maine protects “gender” in its
antidiscrimination laws. However, it is significant because it is the first
case where a state’s highest court has determined that a student’s
gender-specific restroom and locker room use is protected.
OCR Issues Additional Gender Identity Protections. On
December 1, 2014, the U.S. Department of Education’s Office of Civil
Rights (“OCR”) issued guidance on a renewed trend in some districts
to separate classrooms based on students’ sex. The idea is that boys
and girls learn differently in some cases, so the split classrooms are
intended to promote achievement by all students by targeting sex-
specific learning differences. It should come as no surprise that the
OCR’s position on transgender students is clear: they should be
permitted to learn in the classroom of the gender with which they
identify. While transgender student issues have always involved
restrooms and locker rooms, the issues are now fundamental to many
classrooms.
Kentucky Senator’s Bill Would Award Damages to
Students Who Share Facilities with Transgender Students. With
gender-identity protections largely favoring transgender individuals,
one Kentucky state senator introduced a bill which would force
Kentucky schools to limit facility accessibility based on “biological sex.”
In short, the bill states that each “school restroom, locker room, and
shower designated for student use accessible by multiple students” is
limited to biological sex. While the bill also requires schools to
accommodate transgender individuals, it provides a “private cause of
action” against the school if any school personnel permit someone to
use a facility of the opposite biological sex. Essentially, students can
sue the school for damages, capped at $2,500, if they are even made
to use a school facility at the same time as someone of the opposite
biological sex, i.e., a transgender student.
Nebraska Legislative Bills Seek Protection for Gender
Identity and Sexual Orientation. Three bills introduced this
legislative session would protect job applicants, state contractors,
employees, and others against discrimination on the basis of “sexual
orientation” and “gender identity,” two areas not before protected by
Nebraska state law. While some cities in Nebraska have chosen to
protect sexual orientation and gender identity, this would amend state
law requiring those classes to be protected by employers and state
entities like public school and educational service units.
As you can see, the efforts to obtain protections for transgender
students and staff members are increasing by the day.
If you have questions, we recommend that you consult with your
school district’s attorney or call Karen, Steve or Bobby.