We’ve read the ACLU’s email regarding gender identity, and we’re sure you have, too!

On October 27, 2015, the Nebraska ACLU’s legal counsel, Amy Miller, sent

an email to Nebraska school administrators entitled “ACLU guidance related

to transgender students.” The email provides information regarding the

alleged obligations of school districts as they relate to transgender students.

Ms. Miller notes that a similar email went to the Nebraska School Activities

Association in light of their considerations regarding activity participation for

transgender students. We certainly appreciate the ACLU adding their voice

to the already-robust discussion of these issues in Nebraska public schools.

We agree that boards of education should make informed decisions on these

important issues with all available information, which compels us to clarify

several points from Ms. Miller’s email.

Ms. Miller states that students have “clear legal rights” regarding gender

identity. We disagree that the law and these “rights” are clear in all cases.

Neither Nebraska’s Unicameral nor Congress has passed laws clearly

establishing “gender” as a legally protected class like they have for sex,

national origin, and age, to name a few. In fact, legislation attempting to

add “gender” as a protected class has categorically failed at both levels.

Similarly, no court case and none of the cases cited in the email, such as

Mathis, Hart, and Doe, establish gender as a protected class or fully clarify

the obligations of Nebraska schools. Mathis is a Colorado Human Rights

Commission case, not a court case with precedent applying to Nebraska

schools. Hart was an employment discrimination case from a lower

Maryland federal court. Doe was a case interpreting Maine’s state law

regarding gender identity, not a federal law or Nebraska law. In short, there

is no definitive court case on this issue.

Ms. Miller is correct that the U.S. Supreme Court and other courts have

prohibited discrimination based specifically on “gender norms,” but they

have not deemed transgender citizens to be a protected class. This is an

important legal distinction. We believe schools across Nebraska are

appropriately addressing any perceived discrimination, harassment, or

bullying based on gender norms, but that is a separate question from

schools’ obligations regarding all matters involving gender identity.

If the law was as clear as Ms. Miller states, we would not have court

decisions such as G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54 (E.D.Va.

Sept. 17, 2015). In G.G., a federal court in Virginia declined to issue a

preliminary injunction requiring a school to permit a transgender student to

use the bathroom consistent with the student’s gender identity. The

Department of Justice (DOJ) made nearly identical arguments to those

contained in Ms. Miller’s email. As the court pointed out, federal regulation

34 C.F.R. § 106.33 specifically permits facilities to be assigned based on

“sex,” and the court noted that the DOJ’s position in the case was

inconsistent with this federal law. Considering the context of Ms. Miller’s

email, it is important to note that the court also concluded that federal

agencies such as the DOJ and the Department of Education’s Office for Civil

Rights (OCR) cannot simply create legal standards by changing their

interpretation of existing federal law to protect gender identity. You can

read the G.G. opinion here.

Ms. Miller is correct that the DOJ and OCR take the position that

discrimination on the basis of gender identity is prohibited by federal law.

Ms. Miller cites to OCR “Resolution Agreements” from Downey Unified School

District and Arcadia Unified School Districts and “guidance” issued by the

DOJ and OCR to support the idea that public schools do have heightened

legal obligations regarding gender identity. These “Resolution Agreements”

are essentially settlement agreements between individual schools and the

OCR, in which the OCR has taken the position that the school must permit

the student to use the restroom and locker room facilities consistent with

their gender identity. The DOJ has taken the same position and has come to

similar agreements with employers and other entities.

However, these “Resolution Agreements” are not court cases binding on

Nebraska schools. These are agreements reached with individual schools to

resolve OCR complaints, with the alternatives for schools being lengthy

investigations and lawsuits aimed at stripping schools of federal funding. As

the Virginia court noted, there are no new laws, just new interpretations. In

response, at least one school is pushing back against the OCR. An Illinois

district is refusing to comply with an OCR directive to permit a transgender

female student to use the female locker room. We are monitoring this case

as it progresses, but it illustrates the point that the law is not clear and that

OCR’s interpretation is not the same as law.

In summary, the law on the issue gender identity and the obligations of

public schools is far from settled. It is true that the DOJ and OCR may deem

your school in violation of federal law if a complaint is filed and you do not

follow their interpretations. It is also true that the DOJ, OCR, and/or ACLU

may file a lawsuit against your district if you do not accept their position.

Under this threat of litigation, the ACLU suggests that your school consider a

policy, much like the NSAA is considering an activity participation policy.

You are not required to establish a formal policy, nor do we

recommend it to our clients at this time. Policies should be clear and simple,

and the law surrounding gender identity is anything but clear and simple.

The law in this area is evolving so frequently that any policy enacted by a

school, regardless of its stance on gender identity, could directly invite

litigation or establish obligations on the district which simply are not

required by state or federal law.

There is an alternative course. We know that school boards, administrators,

and staff strive to treat everyone with respect and provide a top quality

education to all students. We believe school districts are acting completely

appropriately and within the existing legal framework by addressing these

matters on a case-by- case basis, without adopting formal policies. Boards

are certainly free to pass policies regarding gender identity as the ACLU

suggests, but we strongly encourage boards and administrators to

collaborate with legal counsel on all matters involving transgender students

and staff, especially if your board is inclined to pass a policy.

If you have questions or concerns about these or any related issues, we

recommend that you consult with your school district’s attorney or call

Karen, Steve, or Bobby.