Legal Brief
Transgender Employee Rights in Schools
By MICHELE V. JONES/School Administrator, October 2017

STUDENTS WERE STUNNED one day in 2014 when they came to school to discover that Mr. Sconce, their award-winning high school science teacher with 24 years in a central California school district, now was Ms. Scot. The abrupt revelation that he was now she was not supposed to be rushed, but someone from the district leaked the news of his transition to the local newspaper.

The reactions from residents in this small community near Yosemite National Park ranged widely, from “You are my hero” to letters urging Ms. Scot to quit because she was an “assault on the minds and morals of our children.”

Scot described her transition in news reports as “horrible.” The district sent letters home to parents, informing them that her rights to her job were protected under California law and that Scot, regardless of the transition, would keep her job as a science teacher with the district.

Lark Doolan, a superintendent/principal in California’s Peninsula Union School District, had a different experience during her/his transition. Doolan’s transition was gradual, and when he came out publicly as a male, he found support among colleagues and students. Doolan ensured academic instruction in his district was not interrupted by his transition.

Both Sides’ Rights
Several states have laws similar to California that protect the rights of transgender employees. Federal courts have ruled that transgender employees are protected against employment discrimination because of the prohibition against gender discrimination in Title VII of the 1964 Civil Rights law, but no federal law specifically prohibits discrimination against transgender employees.

The right to freedom of expression is a fundamental human right, guaranteed by the Constitution. School employees do not shed their constitutional rights at the schoolhouse gate, but limits exist as to how a transgender employee may express himself or herself within the district.

Scot assured the school district that her goal was to teach, not to promote a social agenda in her classroom. If she had opted to use her classroom to promote the ideology behind her transition, her actions or expressions in this case might not have fallen within the scope of her duties as a science teacher. In a scenario where there is disruption in the classroom process, the district might have cause to discipline an employee.

Protecting Rights
The first step to preventing workplace discrimination is to acclimate employees throughout the district to the rights of transgender employees. Train employees so they understand their rights and the rights of transgender employees.

Public school leaders could take a lesson from the private sector. Numerous cases against private-sector employers demonstrate that lower courts will hold employers liable when employees create a hostile work environment for transgender employees. Clearly, prohibit offensive comments toward employees who do not conform to gender-based norms. Abolish the expectation that a person’s appearance or manner of dress should reflect the gender of his/her birth.

Plan which bathrooms and facilities will be available to transgender employees. Make sure employees use the correct pronoun when addressing a transgender employee. Address the transgender employee by the name of his/her choice. Respect a transgender employee’s right to privacy through the transition.

Promoting Sensitivity
Transgender employees may not find easy acceptance in the school workforce, but gender transitions will happen. The cost to a school district to sensitize its employees to the rights of transgender workers is small in contrast to the potential cost of a lawsuit against the district.

Promoting awareness of transgender rights and taking steps to meet the needs of the transgender employee and the school community at large may lessen any controversy surrounding a person’s gender choice. The school attorney or the state professional organization are the best sources of information on your state’s laws protecting transgender employees.
MICHELE JONES is school attorney with Albany-Schoharie-Schenectady-Saratoga BOCES in Albany, N.Y. E-mail: Michele.Jones@neric.org