Educating Transgender
Students ©
Campbell Shatley, PLLC
674 Merrimon Ave.
Suite 210
Asheville, NC
(828) 398-2775
- Bullying or harassing behavior includes, but is not
limited to, acts reasonably perceived as being motivated
by any actual or perceived differentiating characteristic,
such as race, color, religion, ancestry, national origin,
gender, socioeconomic status, academic status, gender
identity, physical appearance, sexual orientation, or
mental, physical, developmental, or sensory disability, or
by association with a person who has or is perceived to
have one or more of these characteristics.
 Transgender is an umbrella term used to describe
people whose gender identity (sense of themselves as
male or female) or gender expression differs from that
usually associated with their birth sex. Many
transgender people live part-time or full-time as
members of the other gender. Broadly speaking,
anyone whose identity, appearance, or behavior falls
outside of conventional gender norms can be
described as transgender. However, not everyone
whose appearance or behavior is gender-atypical will
identify as a transgender person.
- American Psychological Association
 Gender Expression refers to external cues that one uses to
represent or communicate one’s gender to others, such as
behavior, clothing, hairstyles, activities, voice,
mannerisms, or body characteristics.
 Gender Identity refers to one’s internal sense of gender,
which may be different from one’s assigned sex, and
which is consistently and uniformly asserted, or for which
there is other evidence that the gender identity is
sincerely held as part of the student’s core identity.
 Gender-Based Discrimination is a form of sex
discrimination, and refers to differential treatment or
harassment of a student based on the student’s sex,
including gender identity, gender expression, and
nonconformity with gender stereotypes, that results in the
denial of limitation of education services, benefits or
opportunities. Conduct may constitute gender-based
discrimination regardless of the actual or perceived sex,
gender identity or sexual orientation of the persons
experiencing or engaging in the conduct.
 Whether gender-based discrimination is prohibited under
Title IX and Title VII is an evolving legal topic which we
will address in the next slides
2012 – Arcadia Unified School District
OCR Case
o Beginning in 5th grade, a female student began
asserting male gender identity and consistently
asserted male gender identity for the remainder
of elementary school and middle school.
o The student consistently and uniformly
identified and presented as a male in school
and all other aspects of his life (according to the
OCR investigation, many of his classmates
didn’t know he was transgendered).
2012 – Arcadia Unified School District
OCR Case
o While in middle school, the student filed a complaint with
OCR alleging that: 1) the school district prohibited the
student from using sex-specific restrooms and locker rooms;
and 2) the school district refused to permit the student to say
in a cabin with other male students at an overnight camp and
instead, was required to stay in a cabin separate from all his
classmates, with his parents or another adult chaperone.
o In a voluntary resolution agreement with OCR, the school
district reserved its position and allowed the student to use
sex-specific facilities at school and on school-sponsored trips
and to otherwise treat the student as a boy in all respects.
o Why did the school district reverse its position?
• Federal law provides legal protection for members
of a “protected class”. Under federal law, it is
illegal to discriminate against individuals based
on: race, color, religion, national origin, age, sex,
pregnancy, citizenship, familial status, disability,
veteran status and genetic information.
• What is the difference between “sex” and
“gender”?
 Student assigned male sex at birth identified as female as early as
pre-Kindergarten; diagnosed as Gender Dysphoria prior to
entering school
 From K-5th grade, student, however, had not made a gender
transition at school
 During 5th grade, student alleges she was disciplined because of
her gender nonconformance and gender identity
 Staff confiscated her makeup
 Made student apologize to male students who were uncomfortable
when she put on makeup
 Discouraged her from discussing her gender identity with friends
and discontinued her participation in group counseling sessions for
fear that she may discuss her gender identity
 Further alleges peer harassment
 Further alleges district failed t0 support her transition in
fifth grade
 Continued to refer to her as her male name
 Yearbook used her male name
 After student transferred to new middle school was allowed
to use female restrooms and facilities (without incident)
 Continued to be harassed by peers
 During this time, California adopted law requiring districts
to permit students to participate in sex-segregated
programs and activities, including athletics and facility-use
consistent with student’s gender identity
 Resolution Agreement with OCR
 Hire third-party consultant with expertise in child gender
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identity
Continue to treat student as a female in regards to all
programs and facility use; student may request private
facilities
At parent request, develop Student Success Plan (SSP) to
ensure a safe and equitable process for student at school
Include the SSP in its policy manual
Massive professional development
Incorporate instruction on gender identity, gender-based
discrimination and examples of prohibited conduct
School Climate surveys
 Amicus Curiae
 Tooley v. Van Buren Public Schools (E.D. Mich. 2014)
 Pratt v. Indian River Central Sch. Dist. (N.D.N.Y 2011)
 Motion to dismiss not granted on Title IX claims for
harassment based on non-conformity with sex stereotypes
 Party Intervener
 Doe v. Anoka-Hennepin Sch. Dist. No. 11 (Minn. Dist.
2011)
 Included a comprehensive settlement similar to that in the
OCR cases plus $270,000 settlement amount
 School refused to allow female transgender student to
use female communal bathrooms; was allowed to use
private restroom
 Based on this prohibition, parent refused to enroll
student in the school and instead brought suit
 Court upheld school’s policy stating:
 Student was not denied benefits of, or discriminated
against under any education program based on sex
 “It would be a stretch to conclude that a “restroom, in
and of itself, is educational in nature and thus an
education program”
 Transgender male (sexually female) sued University of Pittsburgh after not
being allowed to use male facilities
 Court determined that Equal Protection Claims based on gender received
intermediate scrutiny but that since transgender is not a suspect class, this
particular case would receive the lower scrutiny or the rationale basis standard
 Court balanced the University’s need to ensure privacy of all students and
upheld the Defendant’s ban on Plaintiff using male locker rooms and
bathroom
 The Court also noted that if the court applied intermediate scrutiny it would
have come to the same conclusion because the University’s interest in
protecting all student’s privacy was an important governmental interest
 Court also dismissed Title IX claims, citing that the prohibition on facility use
is not a valid sex stereotyping claim
 Court focused on the fact that University allowed plaintiff to enroll in male
weight training class; used his male name; updated student records to reflect
the name change; and treated him as male in all other respects
 Order has been appealed by Plaintiff
 Price Waterhouse v. Hopkins, 490 U.S 228 (1988)
 Harasser's conduct motivated by a belief that the
victim did not conform to the stereotypes of his gender
 Discrimination because employee/student fail to
conform to gender norms
 These claims may include harassment/discrimination
based on behaviors, mannerisms, and appearances
 Typically, claim is not based on status as transgender,
rather claim is based failure to conform to certain sex
stereotypes
 Discrimination against the transsexual is then found not to be discrimination
“because of ... sex,” but rather, discrimination against the plaintiff's
unprotected status or mode of self-identification. In other words, these courts
superimpose classifications such as “transsexual” on a plaintiff, and then
legitimize discrimination based on the plaintiff's gender non-conformity by
formalizing the non-conformity into an ostensibly unprotected classification.
 Such analyses cannot be reconciled with Price Waterhouse, which does not
make Title VII protection against sex stereotyping conditional or provide any
reason to exclude Title VII coverage for non sex-stereotypical behavior simply
because the person is a transsexual. As such, discrimination against a plaintiff
who is a transsexual—and therefore fails to act and/or identify with his or her
gender—is no different from the discrimination directed against Ann Hopkins
in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.
 Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
 Macy v. Holder (2012) & Complainant v. McHugh (2015)
 Identified several ways in which discrimination against a transgender person
may be sex discrimination:
 Taking an adverse employment action against a transgender individual because
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the person is transgender or because the person expresses an intention to
transition from male to female or vice versa.
Offering a job to an applicant who initially presents as one sex but rescinding
the offer when the employer learns that the applicant plans to or is transitioning
to the other sex.
Hostility to transgender gender-nonconforming individuals because they do not
look or act like the employer thinks a man or woman should act.
Refusing to allow a transgender individual to wear the clothing associated with
the gender she identifies with.
Refusing to allow a transgender individual to use the restroom appropriate for
the gender she identifies with.
Failing or refusing to use a transgender employee's correct name and pronoun if
such conduct is sufficiently severe and pervasive to create a hostile work
environment.
• So is it illegal to discriminate based on gender? It
is unsettled ground…but the trend is clear!
o The EEOC has opined that gender
discrimination in the workplace is a form of
sex discrimination in violation of Title VII of
the Civil Rights Act (this would include
transgender discrimination).
o OCR’s actions in its enforcement measures as
well as involvement in litigation provides a
glimpse of how OCR will treat gender based
discrimination in the school/student context.
 The presumption is typically in the student's favor
 Arrange for the student to speak with the school
counselor
 Speak with the student yourself
 Have a parent/student conference
 Speak with teachers
 How has the student presented him/herself in
the past
 Noticed any changes
 Attendance / grade issues
 Bathrooms
 Overnight trips
 Sex-Segregated Athletics/Extra-curricular
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(NCHSAA rule is the “birth certificate” rule)
Physical Education/Health classes
ROTC Uniforms
Student’s name/identification
Student Records
Dress Codes
Keep an open mind;
Remind staff to keep an open mind;
Educate yourself;
Remember that the parents may have a lot of anxiety;
Don’t make judgments; Don’t make assumptions;
Ask questions;
Create a team approach to address; seek outside help when
necessary;
 Consider medical information; refer parents to counseling if
necessary;
 Determine if there is a disability;
 Consider the safety/privacy of the student as well as the safety
and privacy of all students in the school;
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Consider the best interests of the student and all students;
Consider the age and maturity of the student;
Consider where the student is within the “process”;
Consider privacy issues;
Give the family options;
Refer to the student using preferred name and gender pronouns;
Make the student (and family) feel safe and welcome in the
school;
 Assign a counselor and someone the student may report bullying or
harassing behavior
 Make decisions through the team;
 Document the process and the district's important interests in
making decisions
 Do address the student as preferred name
 Do change records to reflect preferred name(to the
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extent possible)
Do maintain the student's privacy;
Do not “out” the student
Do not allow harassment
Do not treat the student negatively because of the way
she looks or acts
Chad Ray Donnahoo
Campbell Shatley, PLLC
(828)-378-0064
chad@csedlaw.com