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2022 Update: Transgender Student Issues
School officials continue to navigate legal, political, and familial issues when responding to a transgender student’s request to use the student’s preferred name and pronouns at school and to access facilities consistent with the student’s gender identity. Although no Michigan or federal statute expressly prohibits discrimination based on a person’s transgender status or gender identity, federal courts, including the U.S. Supreme Court, have interpreted Title VII, Title IX, and the Equal Protection Act to prohibit such dis-crimination. State and federal guidance also encourage school officials to protect transgender students from discrimination and harassment by supporting requests for name changes and facilities access.
Latest U.S. Supreme Court Decision
On June 15, 2020, the U.S. Supreme Court issued its landmark decision in Bostock v Clayton County, 140 S Ct 1731 (2020), holding that Title VII’s protection against sex-based discrimination in the workplace applies to discrimination based on sexual orientation and gender identity. The Court found that it was impossible to discriminate based on sexual orientation or transgender status without also discriminating based on sex. The Court, however, declined to address specific workplace and school issues, such as access to single-sex restrooms and locker rooms.
Recent Federal Court Decisions
In the summer of 2020, shortly after Bostock, both the Fourth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals, whose decisions are persuasive but not binding in Michigan, held that Title IX protects transgender students and prohibits schools from discriminating against them based on gender identity in the context of restroom access. Both courts cited to Bostock, with the Eleventh Circuit explicitly stating that “[w]ith Bostock’s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.”
In June 2021, the U.S. Supreme Court denied a school board’s petition for review of that Fourth Circuit decision that upheld a transgender student’s use of bathroom facilities that corresponded with his gender identity. By declining review, the U.S. Supreme Court left in place the decision that Title IX and the Equal Protection Clause prohibit discrimination against transgender students. Three of the 11 federal circuit courts, along with numerous federal district courts, have now ruled that transgender students must be permitted to use bathrooms and locker rooms that match their gender identities.
Similarly, the Sixth Circuit Court of Appeals, whose opinions are binding in Michigan, issued a unanimous decision in 2018 that employment “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and that such discrimination imposes the employer’s “stereo-typical notions of how sexual organs and gender identity ought to align.” This ruling is consistent with the court’s 2016 decision upholding an injunction against an Ohio school that barred an 11-year-old transgender girl from using the girl’s restroom at school. In that case, the court concluded that “[u]nder settled law in this Circuit . . . sex stereotyping based on a person’s gender non-conforming behavior is im-permissible discrimination.”
State and Federal Guidance
State and federal guidance also continue to support school officials taking actions to affirm a transgender student’s right to self-identification and provide access to sex-segregated facilities that correspond with their gender identity.
At the state level, the Michigan State Board of Education’s September 2016 “Statement and Guidance on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) Students” has remained unchanged through two different gubernatorial administrations. The state guidance notes that the student is the best person to determine their own identity, and encourages schools to (1) make changes to student records and in the student information system to reflect a student’s preferred name and pronouns, (2) provide access to sex-segregated facilities that align with a student’s gender identity, and (3) “work closely with the student and his or her parent(s)/guardian(s) to develop a plan to address the student’s particular circumstances and needs.”
The Michigan Civil Rights Commission has announced that it will process complaints based on gender identity or sexual orientation as sex discrimination complaints prohibited by the Elliott-Larsen Civil Rights Act.
Similarly, the Biden administration issued two executive orders in 2021 related to transgender students. The March 8, 2021 order states that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”
The U.S. Department of Education’s Office for Civil Rights followed these executive orders with its June 2021 Notice of Interpretation that it would enforce Title IX’s prohibition against discrimination on the basis of sex to include sexual orientation and gender identity. That same day, the Michigan Department of Education issued a statement indicating its support for this position.
The U.S. Department of Justice and the U.S. Department of Education released additional guidance in June 2021, further encouraging schools to respect a transgender student’s right to use their preferred name and pronouns that correspond with their gender identity. This guidance also provides examples of incidents OCR could investigate, such as a staff member refusing to use a student’s preferred name and pronouns.
We encourage school officials to approach these situations on an individualized basis. No “one-size-fits-all” procedure appropriately accommodates students whose gender identity does not correspond with their sex assigned at birth. Instead, we recommend an individualized approach that includes discussing a student’s needs with the student, and their parents/guardians, whenever possible, and developing a plan that reflects each student’s wishes. One student’s gender identity and expression may differ from another’s and may change over time.