In May 2016, the Departments of Education and Justice, under the Obama Administration, issued guidance confirming their position that Title IX, the federal law prohibiting discrimination on the basis of sex, includes protection for transgender students. Early this year, in February of 2017, the U.S. Department of Education’s directives concerning the rights of transgender students under Title IX changed course when the current administration rescinded the 2016 guidance. This potentially clouds the interpretation of how federal agencies interpret the scope of Title IX.

Title IX applies to all schools (including both K–12 schools and colleges) that receive federal money, including nearly all public schools. For independent schools, these rules don’t apply so long as the school does not receive any federal funding. However, regardless of the current national landscape under federal law, independent schools must continue to bear in mind obligations pursuant to applicable state law.

Some states have gone above the current political football related to federal law and developed laws relative to gender identity and transgender rights. Both Massachusetts and Connecticut are generally considered to be at the forefront of states offering the most significant degree of protection in this area. In Connecticut, “gender identity or expression” has long been recognized as a protected category under Connecticut’s non-discrimination laws. In February 2017, following the DOE’s withdrawal of guidance, Governor Dannel P. Malloy announced by executive order that the State of Connecticut will continue to assure that the rights of transgender students in public schools remain protected under state law.

Massachusetts also has a network of state laws protecting the rights of transgender individuals, including students. Specifically, “gender identity” has been recognized as a protected characteristic in Massachusetts’s anti-discrimination laws. Governor Charlie Baker has also criticized the recent withdrawal of federal guidance under Title IX and affirmed the protection of transgender students in the Commonwealth. Recent amendments to Massachusetts’s anti-discrimination prohibit discrimination based on an individual’s gender identity in places of public accommodation.

Independent schools in Connecticut and Massachusetts, and across the country are not directly subject to state legal protections applicable to students in public schools. The directive of elected officials and growing legal protections that prevent discrimination based on gender identity highlight the importance of safety and inclusion of transgender individuals, especially in a learning environment. Instead of ignoring an issue that is not going away, independent schools would do well in revisiting their own policies and procedures to ensure student safety and an inclusive, tolerant campus climate.

Despite the need and the growing demand for a compassionate response to this issue, some independent schools continue to discriminate based on gender identity. At the start of the 2017 school year, the Tri-City Christian Academy in Somersworth, New Hampshire gave it’s aspiring transgendered valedictorian, Stiles Zuschlag, an ultimatum – repent and confess your sins and denounce that he was male, stop testosterone and see Christian counseling or complete the school year through a homeschooling program, and not be valedictorian. Stiles who had attended the school since kindergarten, came out as transgender in 2015. He was transitioning from Alija the girl to Stiles the boy. Stiles had the highest GPA in his class and had every intention of graduating as the class valedictorian. Instead of accepting the terms given by the school administration, Zuschlag transferred to Noble High School, a public high school in Lewiston, Maine. In October 2017, Stiles was named the homecoming by his peers at Noble High.

Still, not every transgendered student can chart their own path and be as successful as Stiles in the face of adversity. Students look to the school to maintain a safe and protective learning environment to be successful. Independent schools should look to state law and guidance from state education agencies to develop adequate policies and procedures that benefit all students.

© 2017 Ed Law | New England PLLC

                

%d bloggers like this: