This piece was originally published at RH Reality Check.
On August 12, California Gov. Jerry Brown signed into law the School Success and Opportunity Act (AB 1266), enshrining transgender students’ legal rights to full access of school facilities and sports programs. The first piece of legislation of its kind in the United States, AB 1266 requires California schools to allow transgender and gender non-conforming K-12 youth to use bathrooms and locker rooms and join sports teams that match their gender identity.
Just four days before, though, the University of North Carolina Board of Governors voted, without public discourse, to ban gender-neutral housing, save for married couples and siblings, on all 16 of the university system’s campuses. The ban, which happened in the face of a gender-inclusive housing policy green lit by UNC Chapel Hill, arrived on the heels of a failed bill introduced in April that would have accomplished much of the same. One of the bill‘s sponsors, Sen. David Curtis (R-Gaston), even dubbed the concept of such housing “frivolous social experiments.”
The Landscape for Transgender Students
The current educational rights landscape for transgender and gender non-conforming students is uneven. While victories are coming out of California and Colorado, where transgender 6-year-old Coy Mathis won the right to use the girls’ bathroom, other states are working to dismantle or at the very least curb lesbian, gay, bisexual, and transgender rights. From Tennessee’s botched “Don’t Say Gay” bill, which would’ve banned primary and secondary school faculty from discussing sexual orientation and gender identity/expression to the choice by Pennsylvania’s Red Lion Area School District not to read transgender student Issak Wolfe’s assumed name at graduation (not to mention listing him as a prom queen, instead of a king, candidate), transgender students are facing more roadblocks in guaranteeing equal representation and protection.
Calls received by the Transgender Law Center from transgender youth who’ve experienced discrimination and exclusion in school are often similar, Mark Daniel Snyder, communications manager for the California-based civil rights nonprofit, told RH Reality Check. Transgender and gender non-conforming students frequently report having to use a secluded or faraway bathroom, are banned from participating in school sports and extracurricular programs, or are prohibited from using other school facilities matching their gender identity.
A 2011 joint report by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that, across the educational spectrum, a significant percentage of transgender students reported being denied access to gender-appropriate bathrooms (26 percent) and gender-appropriate housing (19 percent). It also revealed that 6 percent of transgender youth in grades K-12 and 2 percent of college students were expelled for their gender identity/expression, while 11 percent of students lost or were refused financial aid or scholarships for their gender identity/expression.
The joint report also found that 78 percent of transgender K-12 youth and 35 percent of transgender collegians reported experiencing physical, verbal, and sexual violence by students, teachers, or staff due to their gender identity/expression, with students of color experiencing higher rates of violence in school. For example, Islan Nettles, a 21-year-old fashion design student and transgender woman of color, died on August 22 from injuries sustained after being attacked by a group of men who reportedly shouted transphobic and homophobic slurs.
Moreover, 15 percent of youth reported leaving school in grades K-12 or college because of the severity of harassment (48 percent of whom became homeless at some point as a result), and 51 percent of those respondents who’ve experienced harassment or assault reported attempting suicide.
But, said Mara Keisling, executive director of the National Center for Transgender Equality, the country is at a “really pivotal moment around understanding about trans youth.” While most states do not ensure protections for its transgender students, Keisling noted there’s an “oasis” of states that do; laws in California, Colorado, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, the District of Columbia, and North Carolina protect transgender students from the discrimination in public schools on the basis of gender identity/expression. In Washington, Connecticut, and now California, statewide policies afford transgender and gender non-conforming student-athletes the legal right to participate in sports consistent with their gender identity. And, earlier this year, Massachusetts’ Department of Elementary and Secondary Education decreed that schools must allow transgender students to use restrooms and play on sports teams based on their gender identity.
(The National Collegiate Athletic Association allows transgender men who are college athletes and who are receiving hormone therapy to compete on a men’s team, but doesn’t allow transgender women to compete on a women’s team until a year’s worth of testosterone suppression treatment is completed. Furthermore, transgender men student-athletes not receiving hormone therapy can participate on a men’s or women’s team, but a transgender woman not undergoing treatment is not allowed on a women’s team.)
Lack of Gender Neutral Accommodations, Policies
When Logan Henderson started Santa Monica High School as a freshman—the first time he entered school as a teenage boy—he was both supported and mired by the school administration. Required to take physical education for two years, Henderson didn’t feel safe changing in the men’s bathroom, so his counselor offered the option to use the nurse’s restroom, located a considerable distance from where physical education class actually took place. It was an option that disrupted his schedule, unhinged punctuality, and excluded him from interacting with his peers.
“That made it difficult for me to try to continue doing that process,” Henderson, now 18 years old, told RH Reality Check.
He talked with his counselor again and was given further accommodation—this time, physical education was swapped for another course, serving as the required credit to graduate. While this variation resolved one issue, it forged another for Henderson. Although he enjoyed the alternative class, he was deprived of an experience he finds to be important for a student’s mental and physical health: exercising.
In his sophomore year, though, Henderson was able to get in physical activity by enrolling in yoga class. But that too was difficult. “Because I wasn’t changing anywhere, I had to wear my sweaty, smelly PE clothes every single day for the whole year,” he said.
As a member of California’s Gay Straight Alliance (GSA) Network, Henderson became heavily involved in legislative and educational policy advocacy. And, as part of that work, he collaborated with his former high school to implement policies assuring Santa Monica High School’s transgender students wouldn’t have to share the same deterring experience. The Santa Monica-Malibu Unified School District (of which Santa Monica High belongs) already told the press it has a practice of “fostering inclusivity among transgender students at its campuses,” but will study existing policies to confirm their AB 1266 compliance and work with school administrations on understanding the law’s meaning.
“Schools fail to implement these policies, making sure these policies are being utilized properly, and really making sure their students are safe,” Henderson, who starts Dartmouth College in the fall, told RH Reality Check. “I’m pretty sure this year and the upcoming years, [Santa Monica High School will] be able to follow the law and make the necessary accommodations.”
For fellow GSA Network member Benji Delgadillo, both his former high school, San Juan Hills High School, and current college, University of California at Berkeley, exhibit a lapse in such effective school policy. At San Juan Hills, for example, the 19-year-old transgender Latino man said the school didn’t have a system in place for a preferred name option to replace legal appellations, nor how to undertake name changes with teachers and staff, when he came out during his junior year. Now, however, after much activism on Delgadillo‘s part and in collaboration with San Juan Hills’ principal, the high school is using a working model policy created by the California Safe Schools Coalition, which addresses the name and pronoun concerns as well as bathroom use.
As for UC Berkeley, where Delgadillo founded the transgender activism group Trans Action, he’s working to shift a few fault lines that present issues for transgender students. Currently, the college student is fighting to increase the number of gender neutral bathrooms on campus and change UC Berkeley’s policies for student identification cards, school emails, and in the school system so transgender and gender non-conforming students have the option of using their chosen—and authentic—name. The school only allows a student’s preferred name to be used on their identification card, known as a Cal 1 Card, if they had their name legally changed—a policy Delgadillo said was recently changed, although it’s not noted on the Cal 1 policy page. (Equal access to school programs and protection from discrimination on the basis of gender identity is already enshrined in the University of California’s umbrella nondiscrimination policy.)
“This presented a problem, because there are undocumented trans students on my campus who cannot get their name legally changed,” Delgadillo told RH Reality Check. “In addition, for students like me, frankly I don’t have the money to get my name legally changed. I’ve been going by the name Benji for the past five years.”
By his own account, Delgadillo was also able to persuade UC Berkeley to offer gender neutral housing options during orientation weekends. When he attended his orientation weekend, the college claimed to not offer such an option when he requested it and, instead, said Delgadillo, accommodated him by placing him on the floor with parents in the men’s dorm. UC Berkeley does offer year-round gender-inclusive housing, though, along with fellow University of California campuses in Riverside and Los Angeles. (UC Riverside was the first public college to do so in 2005.)
Other higher education institutions with some version of gender neutral housing include Brown University, Dartmouth, Itacha College, Oberlin College, Ohio State University, the University of Minnesota, and the University of Wisconsin, among others. A litany of colleges, like Emerson College, Harvard University, and Ohio State University, also offer comprehensive health care for transgender students and faculty, including transition-related care and gender confirmation surgeries.
“Youth are vital because the laws affect the youth on a direct level. Whatever the laws say and how they’re implemented will determine how a youth is treated in school, how a youth is performing in school, whether a youth is able or not to actually pay attention in class,” Henderson told RH Reality Check. “It’s really important that the youth, even if they can’t get involved or they don’t have the safest community, reach out and talk to people, and share their story, and do whatever to get their voices out.”
The Federal Government’s Role
Safeguarding protections and rights for transgender students is not just a feat for states, though. The federal government, notes Keisling, can play a significant role in shaping policies and holding institutions accountable for providing a proper and safe educational environment for transgender youth.
In fact, the Department of Justice’s Civil Rights Division announced in July that it reached a resolution with Arcadia Unified School District (AUSD) in California to ensure all transgender students are afforded the same rights and privileges as other students. The Los Angeles County school district came under fire in 2011 after the National Center for Lesbian Rights (NCLR) filed a federal complaint charging that AUSD discriminated against a transgender youth by prohibiting him from using the boys’ locker room and bathroom, and denying sex-specific overnight accommodations during a school-sponsored field trip. These exclusions, claimed NCLR, amounted to violations of both Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964, each of which protect students from discrimination by schools on the basis of sex.
While not admitting culpability, AUSD has agreed to allow transgender students to use school facilities consistent with their gender identity, update policies and procedures, and train staff to better support transgender students in the district as part of the resolution, states the Department of Justice, Civil Rights Division notification letter sent to NCLR.
To the point of Title IX, in 2010, the U.S. Department of Education released a letter to school districts, universities, and colleges providing guidance on bullying and harassment, as well as clarifying that Title IX does indeed protect transgender and gender non-conforming students from gender-based harassment and discrimination. U.S. Secretary of Education Arne Duncan and Deputy Secretary Tony Miller also published a key policy letter in 2011 regarding legal guidelines issued by the Department of Education prohibiting discrimination against student-initiated groups related to lesbian, gay, transgender, and bisexual issues.
“I think we now all see that protecting our youth is not only the moral imperative we thought it was, it’s also an educational opportunity,” Keisling said, “because anybody who does not want to protect youth, anybody who does not think youth should be safe in school, anybody who does not think all youth should have a chance to learn, to advance themselves, isn’t worth fighting with and isn’t worth listening to.”
She added, “Enforcement from the federal government is really necessary, and that word will get around. Progress is being … made to get students choices that they can use to make sure they’re safe and comfortable to learn, and we are winning that. We’re winning a lot in colleges. We’re winning a lot in high schools. I’m really optimistic.”