Legal Brief

School Policies That Protect Gender Diversity
BY SARAH M. SAINT/School Administrator, October 2022

IN 2014, A SCHOOL DISTRICT
allowed Gavin Grimm, a transgender boy, to use the boys’ restroom. However, after facing backlash from parents, the district adopted a policy requiring students to use bathrooms matching the sex on their birth certificate or single-stall bathrooms.

Grimm received a court order stating that he is male and amended his birth certificate to reflect that he is male. He presented these documents to the school district, but the district refused to amend his school records or budge on the bathroom issue.

The district’s inaction led to serious emotional distress and health issues for Grimm, who sued. In Grimm v. Gloucester County School Board, the U.S. Court of Appeals for the Fourth Circuit analyzed the district’s bathroom policy under Title IX and the Equal Protection Clause of the 14th Amendment and ruled in the student’s favor. The U.S. Supreme Court denied to hear the case, and the school district settled with Grimm for $1.3 million.

Policy Protections

With an increasing number of teens and tweens identifying as transgender and nonbinary, school districts are grappling with several is-sues similar to those in the Grimm case that may not have been on their radar a few years ago.

Courts consistently uphold students’ protection from gender-based bullying and discrimination at school. The federal government has opined that Title IX prohibits discrimination based on sexual orientation and gender identity, and it will review allegations from anyone who files a sex discrimination complaint, including students who identify as transgender.

An effective way for districts to comply with the law is to develop policies and procedures that consider students’ rights and treat everyone with respect. Such policies could:

»Prohibit gender identity-based harassment and discrimination, with consequences for perpetrators.

»Accept a student’s persistent and consistent assertion of their gender identity without requiring corroborative evidence.

»Address students by their preferred names and pronouns without a court-ordered name or gender change or a change to their official records. If a student does provide documentation of a legal name or gender change, the official student record may be changed.

»Allow students to use sex-segregated facilities, and participate in sex-segregated programs, that correspond with their gender identity.

»Provide students the right to control the disclosure of highly personal and private information such as gender identity, transgender status or sexual orientation.

Generally, schools should use the student’s pronouns in all school-based communications, with the student’s consent. To prevent accidental disclosure of transgender status, schools may consider keeping records reflecting the student’s birth name and assigned sex apart from cumulative school records. Schools also should safeguard disclosing information in electronic records. Inappropriately disclosing personally identifiable details from education records may violate FERPA and interfere with transgender students’ rights under antidiscrimination laws.

Colliding Rights

While transgender and nonbinary students have specific rights, so do parents and teachers. Sometimes, those rights clash, creating tricky legal situations.

For example, some teachers refuse to use students’ pronouns, saying to do so would violate their First Amendment rights. Courts have come down on this issue both ways, some concluding that teachers may be disciplined for doing so, and others concluding they may not.

Parents’ rights also can be a grey area as schools may not be obligated to notify parents of their child’s gender identity or expression. Parents, though, have rights to their child’s educational records, and schools must navigate these rights when they are misaligned with the student’s own privacy rights. These issues can be fact-specific so consulting the district’s attorney can prevent missteps.

SARAH SAINT is an education attorney with Brooks, Pierce, McLendon, Humphrey & Leonard in Greensboro, N.C.