Your superintendent informs the board that the high school principal called. The principal said that Mary and John Jones, the parents of James Jones, a freshman at the high school, have just been in to see him. They have advised the principal that James, their only child, is transgender. James has been seeing a therapist who has diagnosed James with gender dsyphoria. James, with his parents’ consent, wants to start coming to school as a girl and be called Jamie. Mr. and Mrs. Jones know how hard the kids in high school can be, and they came to see the principal to make sure the transition goes smoothly. James intends to start coming to school as Jamie the Monday after Thanksgiving. They also told the principal that Jamie, who was expected to be the starting point guard for the boys JV basketball team, now wants to play for the girls’ team. What should the school do? What policies should the board have in place to deal with such a request?
Perhaps your school district has not faced this type of situation yet, but it is likely that you will in the near future. With greater frequency, transgender students are seeking to socially transition (the term “socially transition” is used throughout this article to refer to a transgender individual who, although assigned one sex at birth, is living as the opposite gender) from the gender they were assigned at birth, to the gender they identify with. There are also more students, generally of high school age, who are considered gender non-conforming and do not accept that there is a gender binary – that is male and female – and refuse to express themselves in gender stereotypical ways. This article will provide a broad overview of what it means to be transgender or gender non-conforming, and how New Jersey law impacts the role of school administrators and school boards in addressing the issues presented by a transgender or gender non-conforming student.
Terminology
By now most people have seen the acronym LGBT, which stands for lesbian, gay, bisexual and transgender. However, despite the grouping of lesbian, gay, bisexual and transgender people in one social community, an important distinction must be made between lesbian, gay and bisexual individuals and transgender individuals. Lesbian, gay and bisexual all deal with sexual orientation. Conversely, transgender relates to a person’s gender identity.
Gender identity and sexual orientation are not the same thing. Sexual orientation deals with who a person is physically attracted to. However, with someone who is transgender or gender non-conforming, the issue is not their sexual orientation, but their gender identity.
Gender identity is a person’s deeply held sense of their gender – male, female or something else. For approximately 99.5 percent of the population, their gender identity matches the sex they were assigned at birth. They are considered “cisgender.” Thus, for most people, because their gender identity is aligned with their anatomy, they do not think of their assigned sex and gender identity as separate. To them the possibility that someone’s gender identity might not match his or her genitalia is not something they would even consider possible. Accordingly, when most people hear that someone claims their gender identity does not match their anatomy, it is a totally foreign concept, and they will assume that there must be something emotionally or mentally wrong with the person making the claim, or that they are simply making it up.
What this misses is the understanding that gender identity is truly distinct from a person’s anatomy. And, for approximately .5 percent of the population, their gender identity does not conform to the sex they were assigned at birth. They are transgender.
What both sexual orientation and gender identity do have in common is that neither is a choice. No one chooses to be gay or straight. Likewise a transgender individual does not pick their gender identity any more than a cisgender person does. No one reading this article decided they were a man or a woman, they just were. It is the same for a transgender person. No one asks to be transgender. No one wakes up one morning and decides it would be fun to be transgender. It is not a lifestyle choice, you just are. And for some transgender people, they know from a very early age, often as young as three or four, that there is something different because they know they’re a girl, but everyone is treating them as a boy, or vice versa.
It should also be pointed out that not every transgender person or gender non-conforming person wants to live in the gender opposite to what they were assigned at birth. As referenced in the hypothetical, Jamie, who has been seeing a therapist (which not all transgender individuals can afford to do), has been diagnosed with “gender dysphoria.” Gender dysphoria is a condition where a person experiences discomfort or distress because of the incongruity between the sex they were assigned at birth and their gender identity. Transitioning is the only known effective treatment currently available for those suffering with gender dysphoria.
It is the lack of knowledge of these fundamental concepts of gender identity that leads to the misunderstandings encountered by transgender students in schools, and elsewhere, and impact their acceptance. So for example, in the opening hypothetical, the problem that many people have is that Jamie, because she was born with male genitalia and assigned male at birth, will always be considered a boy. Many consider Jamie’s female gender identity irrelevant – it’s made up – it’s not real; it’s her genitalia that is real. But for a transgender person, as it is for everyone, gender identity is real. In Jamie’s case, her female gender identity is just as controlling of how she feels about herself as it is for any cisgender girl. If people could accept that Jamie’s desire to dress and act as a girl is rooted in the same desires that all girls her age have, many of the contentious issues surrounding transgender student could be diffused.
The Law
In order to protect transgender students and employees, New Jersey’s Law Against Discrimination (“LAD”) prohibits, amongst other things, discrimination based on a person’s gender identity or expression. Importantly, the LAD specifically prohibits discrimination in places of public accommodation, and mandates that in sex- segregated public accommodations, such as bathrooms or locker rooms, a person must be allowed to use the facility consistent with their gender identity or expression. The LAD specifically defines public schools as places of public accommodation covered under the statute. Accordingly, the LAD not only prohibits discrimination against students based on their gender identity or expression, it mandates that students in public schools be permitted to use sex-segregated facilities, such as bathrooms and locker rooms, in accordance with their gender identity or expression. Unfortunately, because the vast majority of people view gender identity and anatomy as synonymous, they have difficulty accepting that Jamie is a girl who just wants to use the girls’ bathroom, not a “boy” wanting to use the girls’ facilities.
There is no question that the use of bathrooms and locker rooms give rise to the most contentious issues involving transgender students (and transgender people in general). Nonetheless, while this may be a contentious issue, the law is clear – a student must be permitted to use the bathroom or locker room in accordance with his or her gender identity. It is also important to point out that nationally there is not one reported case of the transgender student doing anything improper in the bathroom or locker room. We should all keep in mind that a transgender student wants to use the bathroom for the same reason as any other student – to go to the bathroom.
Interscholastic Athletics
Another area that raises some concerns involves the participation of transgender students, generally transgender girls, in interscholastic athletics. These concerns generally arise out of fear that someone assigned male at birth would have a physical, and thus, competitive, advantage over a cisgender female. Often this concern is unfounded because of the impact of puberty-delaying drugs and or hormones. Unfortunately, in the sports arena, the law is less clear than in other areas involving transgender individuals. There are no reported cases in New Jersey to date that have dealt with a transgender student’s rights to participate in interscholastic sports. However, the New Jersey State Interscholastic Athletics Association (NJSIAA), which oversees a large segment of high school athletics in New Jersey, has developed a set of policies for allowing transgender athletes to participate in interscholastic athletics in accordance with their gender identity. While, from an advocate’s perspective, these policies are imperfect, they are an important first step because they recognize the fundamental right of the student athlete to participate in interscholastic sports in accordance with their gender identity. These policies are available on the NJSIAA website in the NJSIAA Constitution.
Best Practices
So let’s return to our opening hypothetical. How do you approach a situation where a student wishes to socially transition?
The hypothetical is made easier by the fact that both parents are in agreement and supportive of their child. This is not always the case, and the implications of non-cooperative parents, or parents divided on the issue, are beyond the scope of this article. But the hypothetical is a good starting point – a meeting with the principal to discuss the issue, and then, the principal reaching out to the administration for guidance.
While it is helpful for the district to have a transgender/gender identity policy in place, and the New Jersey School Board Association’s policy on the issue provides a good framework, it must be emphasized that every situation is different. Not every transgender individual transitions in the same way. So whether or not there is a policy, the approach taken must be individualized to first meet the needs of the student and second, those of his or her parents/guardians. For example, how do Jamie and her parents want information concerning Jamie’s transition disseminated to her teachers or to other students in her classes? Do they want information shared with the student body and/or larger school community? What information do they want disseminated?
Be mindful that a transgender individual is entitled to protection under HIPAA and other privacy protections, so only that information that Jamie and her parents authorize should be disseminated. Similarly, to the extent that Jamie wants to maintain her privacy and limit what information is disclosed, and to whom the information is disclosed, every effort must be made to protect her privacy. This would be especially true if Jamie were in elementary school or middle school, where she would like to move through the school system with her transgender status relatively unknown.
In order to help maintain the student’s privacy, teachers, staff and other students must be instructed to use the name and pronouns in accordance with the student’s preference. Again to avoid unnecessary or inadvertent disclosures, class lists or student rosters must be updated to use the student’s new name and gender.
Questions often arise over how the student should be referred to in “official records,” especially if there is no court-ordered name change. For the most part those issues are beyond the scope of this article and guidance from the school district’s counsel would be appropriate. However, it is useful to keep in mind that the Family Educational Rights and Privacy Act (FERPA) gives parents certain rights with respect to their children’s educational records. Under FERPA, a current or former student has the right to request that their school change their name and gender marker on their school records if the student (or parent if the student is under 18) feel the records are incorrect, misleading, or violate the student’s privacy. Thus, a cogent argument can be made that in New Jersey, which allows for both statutory name change and common law name change (change by consistent usage), even absent a court-ordered name change, a student by usage can change his or her name and then request pursuant to FERPA that their records be corrected.
The most important thing to keep in mind is that there is nothing “wrong” or “abnormal” about a transgender student. Generally, all transgender or gender non-conforming students want is the freedom to express their gender in the manner consistent with who they are. If they are treated with dignity and respect, and not as someone suffering from a delusion, the chances are things will go smoothly. It is also important for the school board and the administration to acknowledge that a transgender student’s legal rights will be scrupulously guarded and that no discrimination or harassment, intimidation or bullying will be tolerated. If these steps are followed, the school environment will return to normal very quickly. As in most situations, if the school board and administrators follow the law and act in the best interest of the student, all will be well, and all students (and often their parents) will learn a valuable lesson in diversity and tolerance.