3 Reasons Schools Should Make Their Own Trans Policies

3 Reasons Schools Should Make Their Own Trans Policies

Wednesday night the Trump administration reversed the one-size-fits-all approach the Obama administration took last year on student privacy in sex-segregated facilities.
William Duncan
By

Wednesday night the Trump administration reversed the one-size-fits-all approach the Obama administration took last year on student privacy in sex-segregated facilities.

The Obama mandate, issued by the departments of Justice and Education, claimed to interpret a 1972 statute on sex discrimination in education, Title IX, and warned schools federal funding was on the line if they did not allow use of locker rooms, restrooms, and other facilities on the basis of a student’s “gender identity” rather than biological sex.

At the end of last year, a federal judge in Texas issued a nationwide injunction preventing the mandate from being enforced. The government asked the Fifth Circuit Court of Appeals to lift that order so it could enforce its interpretation of the law. Earlier this month, however, the Department of Justice told that court it no longer opposed the injunction. It said it was working with the plaintiffs (a group of states led by Texas) that it was “currently considering how best to proceed in this appeal.”

That led to the new Trump administration action, which merely removes the Obama regulatory rewrite of the law, allowing states and local districts to manage these situations. Meanwhile, a Virginia court case on the issue is awaiting review at the Supreme Court. A reasonable policy would be based on three key principles: local control, parental involvement, and common-sense discretion.

Communities Have the Right to Rule Themselves

Public schools should not become laboratories for national social experiments or battlefields for adult culture wars. Since public schools are directly controlled by government, there is always a temptation for the government to use them to test out new ideas. That temptation has to be resisted.

Local control is always an essential element of education policy. The incredibly sensitive nature of subjects like overnight school trips and the use of shower and locker room facilities and restrooms make the mandate’s national policy particularly unwise. It seems obvious that a school in a large urban city where few, if any, parents have concerns about gender-neutral restrooms should be able to address these questions in a way that may be different from a school in a city with a large community of observant religious people with strong scruples about sharing private spaces with members of the opposite sex. Yet that common-sense principle was foreclosed by the 2016 mandate.

Take the case now pending at the Supreme Court involving a lawsuit against a Virginia school for not allowing a student who was born female but who now identifies as male to use male facilities. The school, with input from parents, had created an accommodation involving a single-user restroom, but the federal government stepped in and argued that only a full embrace of the student’s new identity was allowed.

Parents Have Rights, Too

Parental involvement is also critical. One of the most egregious aspects of the Department of Education mandate was its categorical exclusion of parental involvement: “A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.”

This approach is totally unacceptable. A child’s decision to identify as a member of the opposite sex or the school’s determination that a male student will be given access to female changing facilities are matters that cry out for parents’ knowledge and participation. The time horizon of a school as it relates to a particular student is very small, a few years at most. Parents see things entirely differently. They know that they and their child will live with consequences of that child’s choices and the choices of peers for much longer than the schools will address them, and in a much deeper way than teachers and administrators will.

There is reason to worry: In a presentation given to teachers by the Charlotte-Mecklenburg School District in North Carolina, teachers were told they need not inform parents if a student assumes the opposite gender identity in school and that, in those cases, they should address the child by the preferred gender at school and by the birth name in correspondence with parents.

This is particularly troubling since the decision to identify as a member of the opposite sex is so significant. Surely the young adults who now express regret at deciding to undergo hormone treatment and even surgery could have used some parental guidance, particularly where doctors, school officials, or peers were pressing them to make life-altering decisions.

The possibility that a particular parent will handle these issues in a way the school does not approve, or even in a clearly wrong way, is no reason to strip all parents of their opportunity to participate in momentous experiences in a child’s life.

Schools Should Control and Own Their Decisions

School administrators, guided by parental input, also must have flexibility to use common-sense discretion on this sensitive subject. In other contexts, the law recognizes that school officials should be able to address difficult issues by considering specific school-based and individual factors. State and local laws recognizing gender identity as a discrete class for discrimination purposes treat access to sex-segregated facilities in different ways. That would be appropriate here as well.

The U.S. Supreme Court has noted that schools’ efforts are hampered if they can’t take into consideration the developmental capacity of students. In a 1986 case, the Supreme Court allowed a school to discipline a student for making a speech with sexual innuendoes. The majority noted that the school should be free to consider the unique circumstances of the school setting, including the effect of the student’s speech on others: “The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students – indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students.”

Two years later the court decided a case where a high school principal had censored a student newspaper for reasons of fairness and privacy. The court said “a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.”

These precedents outline an eminently reasonable approach to the privacy issues raised by the transgender mandate.

These three principles provide the necessary foundation for Trump administration to take a better tack. When local context, parental involvement, and common-sense discretion guide the new administration’s approach, students are far more likely to be protected in the school setting, preventing an unnecessary social engineering experiment.

William C. Duncan is director of Sutherland Institute’s Center for Family and Society and also serves as the director for the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he also served as a visiting professor. Bill has submitted briefs on constitutional and family issues in the U.S. Supreme Court, 10 federal courts of appeals, eight state supreme courts, and other venues. He has presented expert testimony in the legislatures of seven states. His 75 scholarly articles have been published in the Rutgers Law Review, Howard Law Journal, Journal of Legislation, Harvard Journal of Law and Public Policy, Stanford Law and Policy Review and other journals. He has also published in National Review Online, SCOTUS Blog, and the American Spectator. Follow Sutherland Institute on Twitter @SutherlandInst.

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