SED: Transgender students need 'supportive school culture'

On Board Online • September 5, 2016

Eric Randall
Editor-in-Chief

New York's anti-bullying law addresses the rights of transgender students more explicitly than any federal law.

The state's Dignity for All Students Act includes gender as a protected category and defines a person's gender as "a person's actual or perceived gender identity of expression."

In a July 2015 guidance document, the State Education Department interpreted that 2010 law as obligating school districts to create a “supportive school culture” for transgender students as well as students who are “gender nonconforming” (e.g., an individual who identifies as having no gender or an individual who identifies as both male and female).

The document, which cites multiple works by the Gay, Lesbian, Straight Education Network, states: "It is recommended that schools accept a student's assertion of his/her/their own gender identity. A student who says she is a girl and wishes to be regarded that way throughout the school day should be respected and treated like any other girl," the guidance stated. "So too with a student who says he is a boy and wishes to be regard that way throughout the school day. Such a student should be respected and treated like any other boy."

Regarding bathroom access, the state guidance gives an example of a second-grader who has "socially transitioned" from female to male. "After consultation with the student's family and in accordance with the student's wishes, the principal informed the staff . the student will begin using male restrooms."

The guidance also states: "Alternative accommodations, such as a single 'unisex' bathroom or private changing space, should be made available to students who request them, but should never be forced upon students, nor presented as the only option."

Notably, the guidance's lone citation regarding bathroom access policies relies on the Obama administration's interpretations of what constitutes discrimination under Title IX. But a federal judge recently ruled in Texas vs. the United States that the administration's interpretations are unenforceable. (see story)

Asked if the State Education Department plans to issue an updated advisory regarding transgender student rights in light of the Texas ruling, officials said the topic is under study. "We are reviewing the decision to determine if any further steps are warranted," said Emily DeSantis, assistant commissioner for public affairs.

"Unless State Education Department advises otherwise, districts would be in legal peril to assume that transgender rights do not continue to exist here in the State of New York, notwithstanding this ruling by a federal district court," said Jay Worona, NYSSBA's deputy executive director and general counsel.