The vast majority of people appreciate their privacy, whether they identify as cisgender or transgender. Privacy is a way to keep personal distance from a large world that rapidly shrinks due to the proliferation of technological innovation. However, privacy means different things to different people. For cisgender, heterosexual people, they don’t have to worry about keeping portions of their personal lives private. Pictures of one’s spouse can be prominently displayed in the workplace without fear of being fired, old pictures from their childhood don’t threaten employment or their social standing.
LGBTQ+ individuals do not have that same luxury. For those LGBTQ+ adults, privacy is everything, as it can impact their employment, housing, and personal safety. Transgender students face similar issues when it comes to their privacy. Revealing a trans student’s or any other LGBTQ+ student’s identity without their permission, or “outing” them, is not only an invasion of their privacy, but puts them at the risk of bullying, harassment, and homelessness. (Human Rights Campaign, 2020)
Educators have a responsibility to maintain the safety and privacy of a student. The Federal Educational Rights and Privacy Act (FERPA) is a federal law that discusses the privacy of student educational records and information. While being transgender may not necessarily be a part of a student’s educational record per se, by outing the student you run the risk of violating FERPA.
Maintain a trans student’s privacy by using the pronouns and names they ask you to use. Do not disclose their identity unless there is some kind of emergency or you believe the student is in danger of hurting themselves or others. Remember that outing somebody is almost never okay; it is up to the LGBTQ+ individual to decide when to share their story. It’s their decision to make, not yours.
Losing one’s job is a fear shared across professions. Gainful employment provides food for tables, roofs for heads, clothing, electricity, running water, access to education, and more. I believe that the trepidation from this critical event can be a powerful barrier to supporting any LGBTQ+ student, especially one who is transgender. I’ve spoken with individuals who privately express their desire to support a trans student on their campus, but feel like their hands are tied by unsupportive administration or are confused by the legalities of said support. While I am not an attorney, and am certainly not licensed to give legal advice, the following should help you gain a little a bit of clarity as to what you need to know or what you need to research for yourself.
With trans issues coming more into the mainstream, and a rising of support following the visibility of said issues, there are, and have been, numerous legal cases popping up around the United States (see: https://time.com/5721482/transgender-students-pronouns-teacher-lawsuits/ for some specific examples) and across the globe. As I am an American citizen with almost absolutely zero knowledge of other countries’ laws, I’m going to limit the scope of this section to the United States.
Firstly, it’s important to look at the macro, the federal level, where one of the critical pieces of legislation passed is Title IX.
“Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. This law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that ‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’” (Harvard University, 2020)
Some key elements of the interpretation of this law revolves around the term “sex”. This becomes extremely crucial in matters involving transgender people, since their gender identity can be in conflict with their biological sex. Primarily, legislation that references Title IX in regard to transgender issues is in relation to bathrooms, locker rooms, and the accommodation of transgender student athletes.
On April 29, 2014, under the Obama administration, the Office of Civil Rights (OCR) from the U.S. Department of Education issued a Q&A letter, which stated, “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”
On May 13, 2016, the U.S. Department of Education and Department of Justice issued a Dear Colleague letter which stated, “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity... Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”
However, on Feb 22, 2017, under the Trump administration, the departments issued a Dear Colleague letter withdrawing the May 13, 2016 letter, stating the previous interpretation gave rise to “significant legislation regarding school restrooms and locker rooms,” and subsequently withdrew the guidelines for further legal analysis and to allow the states to make their own decisions.
As of now, it is unclear if Title IX will protect transgender students based on gender identity for access to bathrooms and locker rooms, nor is it clear whether student athletes will be allowed to compete based on their gender identity instead of their assigned sex at birth.
Currently, the OCR offers a website entitled “Resources for LGBTQ Students” at https://www2.ed.gov/about/offices/list/ocr/lgbt.html which states, “Every school and every school leader has a responsibility to protect all students and ensure every child is respected and can learn in an accepting environment. Title IX protects all students, including LGBTQ students, from sex discrimination. Title IX encompasses discrimination based on a student’s failure to conform to stereotyped notions of masculinity and femininity. Schools should also be aware of their obligation under Title IX and the Family Educational Rights and Privacy Act (FERPA) to protect the privacy of their students when maintaining education records.”
With federal legislation unclear about their protection, trans students are left at the mercy of the state laws, city and county ordinances, as well their local school district policies. For educators, state laws and school district policies are probably going to be the most relevant items to become familiar with to understand your local context. While it is definitely possible to be supportive of transgender students without the backing of protections from the state or school district, it is immensely easier if those protections can be relied upon for support.
Here are some things to be on the lookout for as you go to search for your local guidelines:
· Check your state’s policies in regard to protections for gender identity and gender expression.
· Look for cases at the state level that might have set precedent (like John Doe et. al v. Regional School 26 in Maine, whose Supreme Judicial Court ruled that a transgender elementary school student was discriminated against when she was not allowed to use the girls’ restroom).
· The Transgender Law Center came up with a map to help check your state’s policies: https://transgenderlawcenter.org/equalitymap
· Read your school district policies. Your best source of information will probably lie in the Equal Employment Opportunity (EEO) Policy, which gives an enumerated list as to the protected classes in the district. Look for “gender identity” and “gender expression”. It is also worth looking for sexual orientation as well.
· Ask your district HR or campus administration what the policies are in regard to transgender or gender non-conforming (GNC) students.
If you come to the realization that there are no protections that are currently offered for transgender students in your locality, all is not lost! If there’s anything the Civil Rights Movement has taught us, just because something is legal does not always mean it is ethical or moral. There are some things that you can do to help make a difference, not just for your transgender student, but also for any trans individuals in the area, especially as a person that has privilege stemming from being cisgender—and even more privilege if you don’t identify as LGBTQ+ at all.
· Continue to provide the best environment possible for your trans students. Support them and love them for who they are, not who others wish they were.
· Be a vocal advocate for your students. Use your privilege to advocate for change, even if it’s something that seems small like getting a fellow teacher or administrator to use the correct names/pronouns for a student. If you ground your advocacy in your support for your students, that can be a powerful force!
· Look into local LGBTQ+ groups in your area who are advocating for change in legislative policies. Even conservative states like Louisiana have groups like Louisiana Trans Advocates (LTA) who work to effect change on a state and federal level.
· Donate to these local groups or even national groups that fight to provide protections for trans individuals.
· Lead a charge to get gender identity and gender expression added to the Equal Employment Opportunity policy in your district. This can not only protect students, but any potential transgender staff members as well.
· Incorporate powerful trans role models as shows of representation for your students in your lessons. You don’t even need to mention their trans identity. For example, Laverne Cox and Nichole Mains (who actually revealed herself to be the transgender elementary student in the aforementioned John Doe case in Maine) are phenomenal actresses in Orange is the New Black and Supergirl, respectively. Jennifer Boylan is a wonderful writer and English professor. Chaz Bono is well known for his music, writing, and acting.
· Write to your state and local lawmakers advocating for protections for trans people.
Lastly, if you begin to advocate, make sure that you take care of your employment as well. Not all school districts will respond kindly to active support of transgender students. The list above are potential ideas, some of which not everybody will be able to do because it could lead to negative career repercussions, and that’s okay.
Operate within your personal limits and boundaries based on your administration, your district, and your job security. What’s most important is doing whatever you can to provide a better environment and academic life for your trans students.
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