As The New York Times recently reported, a Colorado school district is facing a lawsuit after refusing to allow a six-year-old transgender student to use the girls’ bathroom in a local elementary school. The case highlights the challenges that school administrators face when addressing requests by transgender students to use single-sex facilities in school.
On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.
The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.
Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.
It is unclear, however, whether other courts would agree with the Maine court if asked to address a similar issue. As the ACLU explains, certain states—California, Iowa, Minnesota, New Jersey, Oregon, Vermont, and Washington—have laws that protect transgender students from discrimination and harassment. For students in other states, the federal law known as Title IX prohibits, among other things, gender-based harassment, including harassment based on the failure to conform with gender stereotypes. Courts have not grappled with whether or how these laws might play out in the school context with respect to single-sex facilities.
In light of the uncertainty in this area of law, schools are left with much discretion in how to handle requests from transgender students and their families to use single-sex facilities. But with that discretion comes significant risks. To lower those risks, schools should not require a student to use the single-sex facilities for his or her birth gender as that decision would almost undoubtedly lead to a legal challenge. The school can offer to allow the student to use a gender-neutral facility for staff or students if doing so would not be a hardship on the student getting to or from class or activities. Or the school can consider more creative, inclusive approaches, like the decision of one Oregon high school which reportedly made unisex bathrooms available to all students. If none of those options are available, the school may have to honor a request to use the single-gender facilities with which the student identifies. And even if other options are available, a school should carefully consider a request by a transgender student to use the facilities for the gender with which he or she identifies. School administrators should provide the transgender student’s family a full opportunity to be heard and should openly assess any concerns that might be raised by other students’ families or the community. Depending on the school’s final decision, opening the lines of communication may not remove the risk of legal challenges completely, but can often help.