SAN FRANCISCO >> From locker rooms and sex education classes to dress codes and overnight field trips, many U.S. public schools already are balancing the civil rights of transgender students with any concerns that classmates, parents and community members might have.
The U.S. Department of Education is drawing on those practices to guide other schools as they work to comply with the Obama administration’s directive that transitioning children be treated consistent with their gender identity.
That has been the policy since 2013 of the Arcadia Unified School District in Southern California. As part of a settlement with the federal departments of Justice and Education that became the foundation for the national mandate issued Friday, students may use the bathroom, locker room or wilderness cabin that corresponds with their recognized gender outside school, Superintendent David Vannasdall said.
“This is absolutely not about a student on a day-to-day basis saying, ‘Today I’m a boy, tomorrow I’m a girl.’ That has never happened,” Vannasdall said. “By the time these students are at a point where they are asking for our help, they are presenting in all areas of their life as that gender.”
The administration had warned schools before Friday that denying transgender students access to the correct facilities and activities was illegal under its interpretation of federal sex discrimination laws. But the new guidance, for the first time, offers advice for accommodating the privacy needs of nontransgender youngsters.
Citing guidelines adopted by Washington, New York, the District of Columbia and Atherton High School in Louisville, Kentucky, President Barack Obama’s Education Department said schools could erect privacy curtains in changing areas, permit all students to make use of single-stall restrooms or work out other case-by-case arrangements as long as the burden doesn’t rest exclusively on transgender students.
“The concerns for right to privacy and safety of children applies to every single child, including the transgender child,” said Atherton’s principal, Thomas Aberli, who faced community opposition when he first allowed a transgender freshman to use the girls’ restrooms two years ago. Since that first student, about a half-dozen more have come out as transgender, Aberli said.
Asaf Orr, a lawyer who directs the Transgender Youth Project Staff at the National Center for Lesbian Rights, said the guidance could help temper the transgender rights backlash that the restroom issue has engendered in states such as North Carolina by showing that minority rights and privacy rights can co-exist if schools respect all students’ need to be comfortable.
At least 13 states and the District of Columbia prohibit discrimination on the basis of gender identity in schools. Hundreds of school districts, from Anchorage, Alaska, and Tucson, Arizona, to Fairfax County, Virginia and Chicago, have adopted similar protections.
Nearly two dozen state high school sports federations have adopted rules governing the participation of transgender athletes on competitive teams, including the ones in South Dakota, Maryland and Nevada.
In Portland, Oregon, Lincoln High Principal Peyton Chapman recalls the “challenging times” about seven years when a transgender student who identified as female transferred there after being bullied at her previous school. The student made the cheerleading squad and “bathroom and locker rooms became an immediate issue with the cheerleading parents,” she said.
An anti-bullying campaign that focused on the difference between sexual orientation and gender identity diffused the situation, Chapman said.
“Some students may be uncomfortable with it, but we can’t let some people’s discomfort violate other people’s civil rights,” she said.
But there was a high level of discomfort as soon as the directive came out, with officials in several states saying they would defy the administration. The rallying cry was against what Mississippi’s Republican governor said was the federal government’s “forcing a liberal agenda on states that roundly reject it.”
While the guidance is not legally binding and the Supreme Court may ultimately decide whether federal civil rights law protects transgender people, schools refusing to comply could face lawsuits from the government and a cutoff of federal aid to education.
Even in areas of the country where such policies enjoy broad support, putting them into practice can be complicated.
The Connecticut Interscholastic Athletic Conference allows transgender students to play on teams that match their gender identities. Since the policy took effect in 2013, a few transgender boys have played on boys’ high school teams, said Karissa Niehoff, the group’s executive director.
Niehoff said that since the state has a policy prohibiting boys from playing on girls’ teams, a transgender girl would be allowed to play on a girls’ team, but not a boys’ team. She said students are allowed to establish eligibility to compete under a different gender once during their school careers to prevent players from bouncing between teams.
So far, there have been no complaints, she said.
“But had somebody said to us, ‘Hey, you have a transgender playing on the team and we think there is a physical disadvantage, well we support that student,” she said.
Boston’s public schools require staff members to use the names and pronouns requested by students, change school records to reflect them and acknowledge they’ve read the district’s policy regarding transgender students, according to Steven Chen, the senior equity manager.
But sometimes there are mistakes.
“If you’ve known a student for the first three years as one name and one pronoun, and then in year four the student has a different name and a different pronoun, I think just naturally you might make a mistake,” he said. “Honest mistakes are much different than affirmatively saying, ‘I’m not going to support my students on this.’”