Update: Transgender Students and Staff

Nebraska educators have been discussing the legal

considerations involving transgender students and staff members for

several years, and things continue to escalate on the national stage.

We have seen a host of legal and media updates, but we are no closer

to a final resolution on the protections afforded to transgender

individuals. The primary issue remains the same. Agencies such as

the Federal Department of Justice, Department of Education, and now

the U.S. Attorney General take the position that “gender” is a

protected class, much like race, national origin, and sex. Despite

some states passing gender protection laws, no federal or Nebraska

law has made this same determination. The risk of agency

enforcement is always there, but no law applicable to most Nebraska

public schools protects “gender.”

You have no doubt followed the news in Nebraska regarding

transgender students, but here are the highlights from around the

country and the Nebraska Unicameral:

U.S. Attorney General Issues Memorandum on Gender

Identity Protections. On December 15, the U.S. Attorney General

issued a Memorandum discussing the AG’s position on enforcement of

Title VII of the Civil Rights Act of 1964. Schools and ESUs are familiar

with Title VII from their nondiscrimination policies’ listing of protected

classes, such as race, national origin, sex, and age. In short, the AG

believes that “discrimination ‘because of . . . sex’ encompasses

discrimination . . . based on an employee’s transitioning to, or

identifying as, a different sex altogether.” In the opinion of the AG,

gender-identity discrimination may be protected by Title VII’s

prohibition of discrimination based on biological sex.

Board Votes Limiting Use of Facilities. Last month, a Virginia

school board officially voted to limit male and female restroom and

locker room usage to “the corresponding biological genders.” The 6-1

vote also included a provision which required transgender students to

use “alternative private facilities” such as unisex bathrooms and

isolated changing areas. Not surprisingly, the ACLU has filed a

complaint with the Federal Departments of Justice and Education

challenging the board’s actions. This case will certainly highlight the

tension between the federal law, which does not protect from

discrimination on the basis of gender, and the position of the federal

agencies which have chosen to interpret gender protections from

existing discrimination laws.

Damages Paid to Transgender Student. The Maine Supreme

Court became the first state high court to award money damages in a

lawsuit against a school district for discrimination based on gender. In

December, Orono School District was ordered to pay $75,000 in

damages to a transgender student who sued the district over its

decision to limit the student’s use of school facilities. Overall, this is a

unique case because the state of Maine protects “gender” in its

antidiscrimination laws. However, it is significant because it is the first

case where a state’s highest court has determined that a student’s

gender-specific restroom and locker room use is protected.

OCR Issues Additional Gender Identity Protections. On

December 1, 2014, the U.S. Department of Education’s Office of Civil

Rights (“OCR”) issued guidance on a renewed trend in some districts

to separate classrooms based on students’ sex. The idea is that boys

and girls learn differently in some cases, so the split classrooms are

intended to promote achievement by all students by targeting sex-

specific learning differences. It should come as no surprise that the

OCR’s position on transgender students is clear: they should be

permitted to learn in the classroom of the gender with which they

identify. While transgender student issues have always involved

restrooms and locker rooms, the issues are now fundamental to many


Kentucky Senator’s Bill Would Award Damages to

Students Who Share Facilities with Transgender Students. With

gender-identity protections largely favoring transgender individuals,

one Kentucky state senator introduced a bill which would force

Kentucky schools to limit facility accessibility based on “biological sex.”

In short, the bill states that each “school restroom, locker room, and

shower designated for student use accessible by multiple students” is

limited to biological sex. While the bill also requires schools to

accommodate transgender individuals, it provides a “private cause of

action” against the school if any school personnel permit someone to

use a facility of the opposite biological sex. Essentially, students can

sue the school for damages, capped at $2,500, if they are even made

to use a school facility at the same time as someone of the opposite

biological sex, i.e., a transgender student.

Nebraska Legislative Bills Seek Protection for Gender

Identity and Sexual Orientation. Three bills introduced this

legislative session would protect job applicants, state contractors,

employees, and others against discrimination on the basis of “sexual

orientation” and “gender identity,” two areas not before protected by

Nebraska state law. While some cities in Nebraska have chosen to

protect sexual orientation and gender identity, this would amend state

law requiring those classes to be protected by employers and state

entities like public school and educational service units.

As you can see, the efforts to obtain protections for transgender

students and staff members are increasing by the day.

If you have questions, we recommend that you consult with your

school district’s attorney or call Karen, Steve or Bobby.