School officials continue to navigate complex 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, especially when the student’s parents request that the school do the opposite.
Although no Michigan or federal law expressly prohibits discrimination based on a person’s transgender status or gender identity, federal courts have interpreted Title VII, Title IX, and the Equal Protection Act to prohibit discrimination on the basis of gender identity and transgender status. 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.
On February 23, 2016, the Michigan State Board of Education (SBE) issued its Statement and Guidance on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) Students. This Guidance provides that “the person best situated to determine a student’s gender identity is the individual student.” The SBE Guidance also encourages school officials to “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.” This plan may include changing the student’s name and gender in the school’s information management system and unofficial student records (e.g., class and team rosters, yearbooks, school newspapers). The plans also should ensure that school employees make a reasonable and good faith effort to address the student by his or her chosen name and pronouns, regardless of whether there has been a legal name change.
At the federal level, the U.S. Department of Education’s Office for Civil Rights (OCR) stated in 2017 that it remains “on duty” to investigate claims of sex-based harassment and to protect all students, including LGBTQ students. OCR also authorized field investigators to investigate complaints of “gender-based harassment,” including complaints of harassment “based on sex-stereotyping” such as “refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus towards people who do not conform to sex stereotypes.”
Sixth Circuit Court Decision
Similarly, the Sixth Circuit Court of Appeals, whose opinions are binding in Michigan, issued a unanimous decision in 2018 establishing 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 “stereotypical notions of how sexual organs and gender identity ought to align.” The employer appealed the Sixth Circuit’s ruling to the U.S. Supreme Court, and a decision is expected in spring 2020. We will update our retainer clients on the status of this appeal as information becomes available.
Michigan Civil Rights Commission Statement
The Michigan Civil Rights Commission cited the Sixth Circuit decision and other federal court decisions when it issued an “interpretive statement” in May 2018 that Michigan’s Elliott-Larsen Civil Rights Act’s (ELCRA) prohibition against discrimination based on sex in employment, housing, and public accommodations included gender identity and sexual orientation. The Commission also stated that it would process complaints alleging discrimination on the basis of gender identity and sexual orientation as complaints of sex discrimination prohibited by the ELCRA. Although former Michigan Attorney General Bill Schuette previously issued an opinion declaring that the Commission did not have the authority to make such a statement, current Attorney General Dana Nessel advised the Commission that she was not bound by the former Attorney General’s opinion.
Federal case law from the Sixth Circuit and across the nation, as well as state and federal guidance, support protecting the rights of transgender students to self-identify and use the name, pronouns, and facilities that correspond with their gender identity. If a school encounters a conflict between a transgender student’s request and a parent’s request, we recommend that school officials have an open and honest dialogue with the student, the student’s parent(s) (if appropriate under the circumstances), and the appropriate school employees (e.g., counselor, social worker, teacher with contact with student) about what is best for the student. Providing parents with a copy of the SBE Guidance also may be helpful.