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Primer for Parents and Students on Transgender Bathrooms in Schools

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By Christopher Coble, Esq. on September 08, 2016 6:58 AM

When most parents send their children off to school, they want them to get a good education and be safe. The same is true for parents of transgender students, only they are also concerned with how their children's rights will be protected on school grounds.

The Department of Education sought to clarify this issue when it released guidance for public schools, ordering them to treat a student's gender identity as their sex and prohibiting them from discriminating against any student based on the basis of sex or gender identity. But while some thought this settled the matter of transgender bathroom access in schools, subsequent lawsuits and judicial orders have muddied the waters, and now it might be up to the Supreme Court to step in and decide things once and for all.

A (Non-Binding) Guiding Light

The Department of Education requires schools to "treat the student consistent with the student's gender identity." Many thought this settled the issue of bathroom access, as transgender students must be granted access to the bathroom corresponding with their gender identity. But Texas and a few other states sued the federal government, claiming the guidance is essentially a "radical re-authoring" of the term "sex" under Title IX, and the department didn't follow the proper procedure before enacting the guidance.

And U.S. District Judge Reed O'Connor agreed, granting the states an injunction against federal enforcement of the new guidelines. This means that until the case is resolved public schools in those states don't have to comply with federal guidelines on transgender bathroom access.

A Supreme Appeal

At the same time, a school board in Virginia is asking the Supreme Court to overturn a lower court's decision that permitted a transgender student who was born female but identifies as male access to the boys' bathroom at his school. The Court has already given the school board a temporary reprieve -- having put the lower court's decision on hold until they can reach a verdict, out of "courtesy" and to preserve the status quo. But a ruling from the highest court in the land could be months away.

In the meantime, it appears that schools have license to force transgender students to use bathrooms corresponding with the sex on their birth certificate, although more thoughtful and compassionate schools can choose to be more forward-thinking on the matter. Generally speaking, federal law (and guidance) trumps on matters of civil rights, so those schools not allowing transgender students access to the bathrooms aligning with their gender identity may just be opening themselves up for more lawsuits.

If you have questions about bathroom access at your child's school, a local civil rights attorney can be the best source of information.

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