Authors: Special Education Law Blog
The Trump Administration’s February 2017 reversal of an earlier Obama decision ensuring that transgender students under Title IX should be allowed to use the school restrooms of the gender to which they identify has thrown school policies with regards to gender identify into flux. The February 22, 2017 “Dear Colleague Letter” stated that the earlier Obama position had wrested the primary responsibility of devising education policy from the states and local school districts. Despite its unhappy conclusion, the letter reiterated the need for protecting transgendered students from both bullying and harassment. It is highly questionable, however, if those words have any actionable meaning.
By definition of the American Academy of Pediatrics, transgender is defined as ”persons with behaviors, appearances, or identities that are incongruent to those culturally assigned to their birth sex. Gender nonconforming individuals may refer to themselves as transgender, gender queer, gender fluid, gender creative, gender independent, or non-cisgender.” So how many teenagers identify as being transgender? The Williams Institute at the UCLA School of Law estimated in January 2017 that 0.7% of youth between the ages of 13 or 17, or approximately 150,000, identify as transgender. Although this percentage is small, it correlates to roughly one in 137 teens. These numbers seem low based on my experience in my practice and the actual census of transgender teens may be more accurately defined in the coming years.
Data clearly and unambiguously demonstrate that being transgendered in our nation’s schools is difficult. According to the National Center for Transgender Equality, 78% of students who identify as being gender non-conforming or transgender report being harassed in school. Of these students, 35% report physical assault at school, and 12% report sexual assault. As a result, 15% of transgender students drop out of school. The 2011 National School Climate Survey reports that 29.8% of LGBT students report skipping class once in the past month; another 31.8% missed an entire day in the past month due to safety concerns. Grade point averages are lower than for other students.
While gender identity issues are not in and of themselves disabilities, although this population is clearly needs protection. However, given the emotionally exhausting and trying experiences that many transgendered teens experience, some many qualify under an emotional disability eligibility or otherwise qualify for a 504 plan to allow meaningful access to school. It may be difficult to find protections under the ADA or Section 504 because gender identity issues are explicitly excluded as a “disability” under Title II of the ADA. (This exclusion, along with other such “immoral” medical condition as pedophilia, pyromania, and kleptomania, were inserted per Senators Helms and Armstrong prior to its passage in 1990.) Thus, under the 504, gender disorder is clearly not recognized as a disability. However, as stated above while the gender issues may not qualify for an IEP or a 504, there may be room to establish a nexus to emotional needs that are having an effect on school.
The ACLU takes a much more stringent opinion on the need for services for students who are transgendered. The ACLU argues that these students should be 504 eligible. Reasonable accommodations, including access to a restroom for the gender to which a student identifies, are necessary to ensure the "affirmation and respect" for a student’s gender identity. Without such accommodations, argues the ACLU, a student’s ability to learn will be impaired. Time will tell if this strategy will be effective in restoring the Obama era Title IX accommodations recently eliminated by the current administration.
A key question to consider when advocating for transgendered students who have special needs is their access to FAPE, or a free and appropriate public education. As already discussed, students who are being bullied may choose to not attend school, often out of self-preservation. It is inherently obvious that a non-attending student will not receive speech, LD remediation, or other services if not in school. Reflecting this concern, the Office of Civil Rights of the Department of Education has already determined that any bullying of a student with a disability can result in a denial of FAPE that “must be remedied.”
“Must be remedied” is clearly a gray area at this time, but we must be zealous in our efforts to protect the rights of gender non-conforming students, and some creativity will be required. For instance, a transgender woman in Pennsylvania has charged a former employer with sex discrimination and is being allowed by a federal judge to sue the employer under the ADA. The lawsuit is challenging the constitutionality of the ADA because it denies equal protection under the law for citizens who are gender nonconforming. A favorable outcome in this case, which is only at the preliminary stages, would be extremely helpful for our advocacy. Ultimately, we may need to amend the federal laws which so pointedly exclude the rights of gender nonconforming persons. The world has come a long way since 1990 and the law needs to keep up with the current times.