The Law Against Discrimination was enacted to prevent and eliminate practices of discrimination against persons based on race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression or disability.
Today, alleged transgender discrimination has been increasingly placed in the public spotlight.
Last summer it was reported that a 13-year-old transgender student was prevented from returning to school dressed as and identifying as a girl, even though the student said that coming out as transgender earlier in the year had helped relieve her of years of depression. Further, according to the report, the school did not provide accommodations for the student’s gender identity, including use of the school bathroom.
As school districts across the state are beginning to encounter issues related to transgender students, some districts have proactively enacted policies. For example, earlier this year, the Hazlet School district introduced a policy giving transgender students the right to assert their preferred gender identity, as long as the student is consistent and sincere with their choice and they provide notice in writing. The superintendent of schools in the Hazlet School district reportedly said, “we want to make sure all of [the students] feel comfortable and are able to access all [that] public education has to offer.” The intent of the Hazlet policy is to set a framework for school officials, students, and parents to discuss issues like bathroom use, locker room selection, physical education classes and other school issues tied to gender.
More recently, we received a question from an administrator regarding what the roommate situation should be for an 18-year-old transgender student on an overnight school-sponsored field trip.
Predictably, the policy debate concerning transgender issues is playing “catch-up” with the rapidly evolving changes in social norms. At the moment there is little guidance being given by the State. In fact, our research has disclosed that the only New Jersey source of guidance on this very issue has come from the New Jersey Interscholastic Athletic Association, which provides that transgender students identifying with a gender different from the students’ birth gender, “shall” be eligible to participate in school athletics in a manner consistent with the students’ “identified” gender if:
- the student provides an official record—new birth certificate, driver’s license or passport—demonstrating the legal recognition of the student’s reassigned sex; or
- a physician certifies that the student has had appropriate clinical treatment for transition to the reassigned sex; or
- a physician certifies that the student is in the process of transition to the reassigned sex.
This policy only offers guidance and is by no means legally binding on a school district. However, it does recognize that the student’s “identified” gender should be the student’s recognized gender.
In contrast with New Jersey’s lack of guidance on this issue, the New York City Department of Education recently adopted broad transgender guidelines which state, among other things, that:
As a general rule, in any other circumstances where students are separated by gender in school activities (i.e. overnight field trips), students should be permitted to participate in accordance with their gender identity consistently asserted at school.
Thus, under such a guideline, in order for the transgender student to be assigned a roommate of the genetically opposite sex, it must be generally known within the school population (students and administrators alike) that the student identifies with his/her genetically opposite sex. For example, for a female student identifying as a male to have a male roommate on an overnight field trip, it must be generally known that the female consistently identifies as a male.
The New York City guidelines also address restroom and locker room accessibility aimed “to support transgender students while also ensuring the safety and comfort of all students.” The guideline provides:
The use of restrooms and locker rooms by transgender students requires schools to consider numerous factors, including, but not limited to: the transgender student’s preference; protecting student privacy; maximizing social integration of the transgender student; minimizing stigmatization of the student; ensuring equal opportunity to participate; the student’s age; and protecting the safety of the students involved.
A transgender student who expresses a need or desire for increased privacy should be provided with reasonable alternative arrangements. Reasonable alternative arrangements may include the use of a private area, or a separate changing schedule, or use of a single stall restroom. Any alternative arrangement should be provided in a way that protects the student’s ability to keep his or her transgender status confidential.
A transgender student should not be required to use a locker room or restroom that conflicts with the student’s gender identity.
None of these issues has an easy solution, but we can be certain that school leaders will be on the frontlines of the ever-changing gender and transgender equality landscape. As these issues begin to unfold with some regularity, districts should begin to craft policies addressing transgender student issues. As with the New York City Department of Education, New Jersey districts should bear in mind the need for these issues to be addressed on a case-by-case basis based on, but not limited to, the following factors:
The transgender student’s preference; protecting student privacy; maximizing social integration of the transgender student; minimizing stigmatization of the student; ensuring equal opportunity to participate; the student’s age; and protecting the safety of the students involved.
This article does not purport to address all issues associated with transgender students. Its purpose is intended to facilitate productive discussion and hopefully lead to common-sense approaches.
As always, all specific legal questions should be directed to the legal department of the New Jersey Principals and Supervisors Association.