Transgender Students and Gender Identity Update: You know what they say about opinions, everybody has one...

It’s been 10 days since the federal Department of Education and

Department of Justice (DOE/DOJ) issued their joint “significant guidance” on

issues relating to transgender students and other gender identity

considerations. Candidly, we have been debating almost daily whether to

send an update on the “guidance.” Our hesitation comes from one simple

fact: this is not new. School boards and administrators who have been

following these issues closely know that the DOE/DOJ position has been

clear for years. While the “new” guidance intensifies speculation over

whether these agencies would strip a “noncomplying” district of its federal

funding, the agencies’ core interpretation of the law remains the same.

They believe, under laws like Title IX, that students’ gender identity dictates

the facilities the students use and the activities in which the students


The uncompromising nature of the “guidance” has added political fuel

to the debate nationally and here in Nebraska, sparking a wide variety of

responses on all sides of these issues. While the federal agency position has

not changed, you’ve seen the headlines popping up in response to the

“guidance.” Several states and government officials, including Governor

Pete Ricketts and Nebraska AG Doug Peterson, have opined on the

“guidance,” saying that it is “ill-conceived” and is a “misrepresentation of the

current law.” North Carolina and the DOJ recently sued each other over

North Carolina’s new “bathroom law,” which limits bathroom usage to each

individual’s biological sex as listed on the individual’s birth certificate. Last

week, an Indiana Congressman introduced a bill which would protect any

“State, or local government of a State” which elected to “enforce a policy

regarding the use of sex-segregated bathrooms...or locker rooms.” In sum,

officials who disagree with the DOE/DOJ likewise believe the law is clear:

school boards can (and according to some officials, should) limit things like

facility use and activity participation to students’ biological sex.

As we look at this from the perspective of advising our clients, the only

thing which is clear is that there are no clear answers or solutions, despite

professed certainty from both sides. The two positions are clear, but the

ramifications that would stem for following either sides’ advice are not. For

that and other reasons, we have long believed that a very good option for a

school board is to gather information, analyze issues in the context of each

school district’s unique circumstances, and proceed slowly by handling

requests on a case-by- case basis under existing policy and law. With each

conflicting “guidance” letter, Office of Civil Rights investigation, and federal

lawsuit, we believe this position is reaffirmed and strengthened.

With that said, we similarly believe that school boards possess the

authority to address these issues formally if they feel compelled to do so. A

board could enact a policy in line with the DOE/DOJ preference that

students’ gender identity resolves all questions and that the word “gender”

should be added to the district’s nondiscrimination policies. On the other

extreme, a board could enact a policy stating that questions regarding

accommodations, student records, facility use, and activity participation are

governed by the biological sex on the student’s birth certificate. While a

board can elect to implement a policy from either extreme, we challenge

board members and administrators to discuss whether they should.

The other choices fall on a spectrum between those two positions,

including our preferred approach discussed above. If the basis for the

DOE/DOJ position is that Title IX’s “sex discrimination” prohibitions already

include a student’s “gender,” then we see no legal requirement for a new

policy either way. Instead, a board can elect to handle requests from

students on a case-by- case basis and wait to see how the law in this area

develops before enacting sweeping policy declarations. Our support for this

position is pretty simple: we think it is the best way to stay out of court and

out of the newspaper. In our experience, schools do way more to protect

and educate students of all kinds than politicians understand.

As school attorneys, our job is to provide legal advice and assist

boards with the legal ramifications of their choices. We feel strongly that

this is a decision to be made at the board level after careful consideration.

We should not dictate your approach any more than the government officials

weighing in on either side. No matter what your board chooses to do, it

should come after careful consideration of all issues, legal, practical, and


If you have questions or concerns about your board’s options, we

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

Karen, Steve, or Bobby.

NOTE for KSB policy service subscribers: We outlined our

perspective on the main legal issues and possible board approaches in our

Policy Updates Memorandum. We addressed issues like requests to change

records, NSAA activity participation, and facility use. Take a look at that

section of the Memo, and please feel free to give any of us a call to discuss