Analysis Human Rights

Being a Transgender Student in the United States: An Uneven Landscape

Annamarya Scaccia

While there have been recent transgender rights victories for students in California and Colorado, there are also plenty of roadblocks in guaranteeing equal representation and protection.

On August 12, California Gov. Jerry Brown signed into law the School Success and Opportunity Act (AB 1266), enshrining transgender students’ legal rights to full access of school facilities and sports programs. The first piece of legislation of its kind in the United States, AB 1266 requires California schools to allow transgender and gender non-conforming K-12 youth to use bathrooms and locker rooms and join sports teams that match their gender identity.

Just four days before, though, the University of North Carolina Board of Governors voted, without public discourse, to ban gender-neutral housing, save for married couples and siblings, on all 16 of the university system’s campuses. The ban, which happened in the face of a gender-inclusive housing policy green lit by UNC Chapel Hill, arrived on the heels of a failed bill introduced in April that would have accomplished much of the same. One of the bill‘s sponsors, Sen. David Curtis (R-Gaston), even dubbed the concept of such housing “frivolous social experiments.”

The Landscape for Transgender Students

The current educational rights landscape for transgender and gender non-conforming students is uneven. While victories are coming out of California and Colorado, where transgender 6-year-old Coy Mathis won the right to use the girls’ bathroom, other states are working to dismantle or at the very least curb lesbian, gay, bisexual, and transgender rights. From Tennessee’s botched “Don’t Say Gay” bill, which would’ve banned primary and secondary school faculty from discussing sexual orientation and gender identity/expression to the choice by Pennsylvania’s Red Lion Area School District not to read transgender student Issak Wolfe’s assumed name at graduation (not to mention listing him as a prom queen, instead of a king, candidate), transgender students are facing more roadblocks in guaranteeing equal representation and protection.

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Calls received by the Transgender Law Center from transgender youth who’ve experienced discrimination and exclusion in school are often similar, Mark Daniel Snyder, communications manager for the California-based civil rights nonprofit, told Rewire. Transgender and gender non-conforming students frequently report having to use a secluded or faraway bathroom, are banned from participating in school sports and extracurricular programs, or are prohibited from using other school facilities matching their gender identity.

A 2011 joint report by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that, across the educational spectrum, a significant percentage of transgender students reported being denied access to gender-appropriate bathrooms (26 percent) and gender-appropriate housing (19 percent). It also revealed that 6 percent of transgender youth in grades K-12 and 2 percent of college students were expelled for their gender identity/expression, while 11 percent of students lost or were refused financial aid or scholarships for their gender identity/expression.

The joint report also found that 78 percent of transgender K-12 youth and 35 percent of transgender collegians reported experiencing physical, verbal, and sexual violence by students, teachers, or staff due to their gender identity/expression, with students of color experiencing higher rates of violence in school. For example, Islan Nettles, a 21-year-old fashion design student and transgender woman of color, died on August 22 from injuries sustained after being attacked by a group of men who reportedly shouted transphobic and homophobic slurs.

Moreover, 15 percent of youth reported leaving school in grades K-12 or college because of the severity of harassment (48 percent of whom became homeless at some point as a result), and 51 percent of those respondents who’ve experienced harassment or assault reported attempting suicide.

But, said Mara Keisling, executive director of the National Center for Transgender Equality, the country is at a “really pivotal moment around understanding about trans youth.” While most states do not ensure protections for its transgender students, Keisling noted there’s an “oasis” of states that do; laws in California, Colorado, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, the District of Columbia, and North Carolina protect transgender students from the discrimination in public schools on the basis of gender identity/expression. In Washington, Connecticut, and now California, statewide policies afford transgender and gender non-conforming student-athletes the legal right to participate in sports consistent with their gender identity. And, earlier this year, Massachusetts’ Department of Elementary and Secondary Education decreed that schools must allow transgender students to use restrooms and play on sports teams based on their gender identity.

(The National Collegiate Athletic Association allows transgender men who are college athletes and who are receiving hormone therapy to compete on a men’s team, but doesn’t allow transgender women to compete on a women’s team until a year’s worth of testosterone suppression treatment is completed. Furthermore, transgender men student-athletes not receiving hormone therapy can participate on a men’s or women’s team, but a transgender woman not undergoing treatment is not allowed on a women’s team.)

Lack of Gender Neutral Accommodations, Policies

When Logan Henderson started Santa Monica High School as a freshman—the first time he entered school as a teenage boy—he was both supported and mired by the school administration. Required to take physical education for two years, Henderson didn’t feel safe changing in the men’s bathroom, so his counselor offered the option to use the nurse’s restroom, located a considerable distance from where physical education class actually took place. It was an option that disrupted his schedule, unhinged punctuality, and excluded him from interacting with his peers.

“That made it difficult for me to try to continue doing that process,” Henderson, now 18 years old, told Rewire.

He talked with his counselor again and was given further accommodation—this time, physical education was swapped for another course, serving as the required credit to graduate. While this variation resolved one issue, it forged another for Henderson. Although he enjoyed the alternative class, he was deprived of an experience he finds to be important for a student’s mental and physical health: exercising.

In his sophomore year, though, Henderson was able to get in physical activity by enrolling in yoga class. But that too was difficult. “Because I wasn’t changing anywhere, I had to wear my sweaty, smelly PE clothes every single day for the whole year,” he said.

As a member of California’s Gay Straight Alliance (GSA) Network, Henderson became heavily involved in legislative and educational policy advocacy. And, as part of that work, he collaborated with his former high school to implement policies assuring Santa Monica High School’s transgender students wouldn’t have to share the same deterring experience. The Santa Monica-Malibu Unified School District (of which Santa Monica High belongs) already told the press it has a practice of “fostering inclusivity among transgender students at its campuses,” but will study existing policies to confirm their AB 1266 compliance and work with school administrations on understanding the law’s meaning.

“Schools fail to implement these policies, making sure these policies are being utilized properly, and really making sure their students are safe,” Henderson, who starts Dartmouth College in the fall, told Rewire. “I’m pretty sure this year and the upcoming years, [Santa Monica High School will] be able to follow the law and make the necessary accommodations.”

For fellow GSA Network member Benji Delgadillo, both his former high school, San Juan Hills High School, and current college, University of California at Berkeley, exhibit a lapse in such effective school policy. At San Juan Hills, for example, the 19-year-old transgender Latino man said the school didn’t have a system in place for a preferred name option to replace legal appellations, nor how to undertake name changes with teachers and staff, when he came out during his junior year. Now, however, after much activism on Delgadillo‘s part and in collaboration with San Juan Hills’ principal, the high school is using a working model policy created by the California Safe Schools Coalition, which addresses the name and pronoun concerns as well as bathroom use.

As for UC Berkeley, where Delgadillo founded the transgender activism group Trans Action, he’s working to shift a few fault lines that present issues for transgender students. Currently, the college student is fighting to increase the number of gender neutral bathrooms on campus and change UC Berkeley’s policies for student identification cards, school emails, and in the school system so transgender and gender non-conforming students have the option of using their chosen—and authentic—name. The school only allows a student’s preferred name to be used on their identification card, known as a Cal 1 Card, if they had their name legally changed—a policy Delgadillo said was recently changed, although it’s not noted on the Cal 1 policy page. (Equal access to school programs and protection from discrimination on the basis of gender identity is already enshrined in the University of California’s umbrella nondiscrimination policy.)

“This presented a problem, because there are undocumented trans students on my campus who cannot get their name legally changed,” Delgadillo told Rewire. “In addition, for students like me, frankly I don’t have the money to get my name legally changed. I’ve been going by the name Benji for the past five years.”

By his own account, Delgadillo was also able to persuade UC Berkeley to offer gender neutral housing options during orientation weekends. When he attended his orientation weekend, the college claimed to not offer such an option when he requested it and, instead, said Delgadillo, accommodated him by placing him on the floor with parents in the men’s dorm. UC Berkeley does offer year-round gender-inclusive housing, though, along with fellow University of California campuses in Riverside and Los Angeles. (UC Riverside was the first public college to do so in 2005.)

Other higher education institutions with some version of gender neutral housing include Brown University, Dartmouth, Itacha College, Oberlin College, Ohio State University, the University of Minnesota, and the University of Wisconsin, among others. A litany of colleges, like Emerson College, Harvard University, and Ohio State University, also offer comprehensive health care for transgender students and faculty, including transition-related care and gender confirmation surgeries.

“Youth are vital because the laws affect the youth on a direct level. Whatever the laws say and how they’re implemented will determine how a youth is treated in school, how a youth is performing in school, whether a youth is able or not to actually pay attention in class,” Henderson told Rewire. “It’s really important that the youth, even if they can’t get involved or they don’t have the safest community, reach out and talk to people, and share their story, and do whatever to get their voices out.”

The Federal Government’s Role

Safeguarding protections and rights for transgender students is not just a feat for states, though. The federal government, notes Keisling, can play a significant role in shaping policies and holding institutions accountable for providing a proper and safe educational environment for transgender youth.

In fact, the Department of Justice’s Civil Rights Division announced in July that it reached a resolution with Arcadia Unified School District (AUSD) in California to ensure all transgender students are afforded the same rights and privileges as other students. The Los Angeles County school district came under fire in 2011 after the National Center for Lesbian Rights (NCLR) filed a federal complaint charging that AUSD discriminated against a transgender youth by prohibiting him from using the boys’ locker room and bathroom, and denying sex-specific overnight accommodations during a school-sponsored field trip. These exclusions, claimed NCLR, amounted to violations of both Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964, each of which protect students from discrimination by schools on the basis of sex.

While not admitting culpability, AUSD has agreed to allow transgender students to use school facilities consistent with their gender identity, update policies and procedures, and train staff to better support transgender students in the district as part of the resolution, states the Department of Justice, Civil Rights Division notification letter sent to NCLR.

To the point of Title IX, in 2010, the U.S. Department of Education released a letter to school districts, universities, and colleges providing guidance on bullying and harassment, as well as clarifying that Title IX does indeed protect transgender and gender non-conforming students from gender-based harassment and discrimination. U.S. Secretary of Education Arne Duncan and Deputy Secretary Tony Miller also published a key policy letter in 2011 regarding legal guidelines issued by the Department of Education prohibiting discrimination against student-initiated groups related to lesbian, gay, transgender, and bisexual issues.

“I think we now all see that protecting our youth is not only the moral imperative we thought it was, it’s also an educational opportunity,” Keisling said, “because anybody who does not want to protect youth, anybody who does not think youth should be safe in school, anybody who does not think all youth should have a chance to learn, to advance themselves, isn’t worth fighting with and isn’t worth listening to.”

She added, “Enforcement from the federal government is really necessary, and that word will get around. Progress is being made to get students choices that they can use to make sure they’re safe and comfortable to learn, and we are winning that. We’re winning a lot in colleges. We’re winning a lot in high schools. I’m really optimistic.”

Commentary Human Rights

The Democratic National Convention Was a Remarkable Victory for Disabled People

s.e. smith

This year's convention included disabled people every evening, as part of a larger inclusive policy that made 2016 a banner year for disability rights activists.

Read more of our coverage of the Democratic National Convention here.

On Thursday night, Hillary Clinton formally accepted the Democratic Party’s nomination for president. Her speech included many of the elements one expects from a nominee, but there were some standout moments—like when she mentioned disability rights, which she did repeatedly.

Clinton integrated disability into her discussion of her record, talking about her work to ensure that disabled children have the right to go to school and bringing up the health-care needs of disabled youth. Her commentary reinforced the fact that she has always cared about disability issues, particularly in the context of children’s rights.

But she did more than that. She referenced shortages of mental health beds. She explicitly called out disability rights as necessary to defend. And at one point, she did not mention disability, which in itself was radical. When she outlined her plans for gun reform and clearly stated that she wanted to keep guns out of the hands of people who shouldn’t have them, she referenced people with criminal histories and terrorists, but not mentally ill people, who have been fighting a surge in stigma thanks to perennial (and wildly incorrect) assertions that mental illness causes violence. That omission was clearly deliberate, given the meticulous level of crafting that goes into writing one of the most important speeches of a presidential candidate’s career.

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The nominee’s speech would have been remarkable on its own, but what made it truly outstanding is that it was far from the first appearance of disability at this year’s Democratic National Convention (DNC). The convention included disabled people every evening as part of a larger inclusive policy that made 2016 a banner year for disability rights activists, who are used to being invisible. These kinds of appearances normalized disability, presenting it as a part of some people’s lives and a source of pride, not shame or misery.

On Monday, for example, disability rights activist Anastasia Somoza rolled out to give a sharp, compelling speech that didn’t cast disability in a tragic or exceptional light. She wasn’t the only wheelchair user to appear on the DNC stage—Paralympic athlete Mallory Weggemann led the pledge of allegiance on a different evening. Dynah Haubert, an attorney for Disability Rights Pennsylvania, took the stage on Tuesday. Nor were wheelchair users the only disabled people represented. Ryan Moore, a longtime friend of Clinton’s, spoke about health care and his experiences as a man with spondyloepiphyseal dysplasia congenital syndrome, a form of dwarfism. Connecticut Gov. Dannel Malloy talked about his learning disabilities. Musician Demi Lovato, who has bipolar disorder, took on mental health.

Former Iowa Democratic Sen. Tom Harkin, a nondisabled man who played an instrumental role in the push to pass the Americans with Disabilities Act (ADA) in 1990, taught the crowd sign language during a lively speech about the fight for disability rights on Tuesday, the 26th anniversary of the landmark legislation.

On Wednesday night, former Rep. Gabby Giffords (D-AZ) strode out onto the DNC stage in Philadelphia, smiling and waving at the crowd, to make a few short remarks. “Speaking is difficult for me,” she concluded, “but come January 2017 I want to say these two words: ‘Madam President.'” Her speech was about gun violence—a subject with which she’s intimately familiar after being shot in the head in 2011.

This level of representation is unprecedented. Some speakers, like Somoza, explicitly talked about disability rights, putting the subject in the spotlight in a way it’s never been at previous conventions. Others, like Giffords, came up on stage to talk about something else entirely—and happened to represent disability while they were at it. Similarly, Rep. Tammy Duckworth (D-IL), a decorated combat veteran and double amputee, talked about military policy.

This is a striking contrast from the treatment of disability at previous Democratic National Conventions: When disabled people have appeared, it’s often been in the form of a lackluster performance that objectifies disability, rather than celebrating it, as in 1996 when former actor Christopher Reeve framed disability as a medical tragedy.

Disability rights activists have spent decades fighting for this kind of representation. In 1992, two years after the passage of the ADA, the platform included just three mentions of disability. This year, the subject comes up in 36 instances, woven throughout the platform for an integrated approach to disability as a part of society, rather than as something that needs to be walled off into a tiny section of the platform, tokenized, and then dismissed.

In the intervening years, disabled people in the United States have fought for the enforcement of the ADA, and taken the right to independent living to court in 1999’s Olmsted v. L.C., which was namechecked in the 2000 platform and then forgotten. Disabled people advocated to have their rights in school codified with the Individuals with Disabilities Education Act (IDEA) in 2004, pushed for inclusion in 2010’s Affordable Care Act, and are fighting to pass the Community Choice Act and Disability Integration Act (DIA). Disability rights in the United States has come a long way since 1990’s infamous Capitol Crawl, in which disability rights activists dragged themselves up the steps of the U.S. Capitol, pleading with Congress to pass the ADA.

And as activists have pushed for progress in the courts and in Congress, disability rights have slowly become more prominent in the Democratic party platform. The ADA has been a consistent theme, appearing in every platform since 1992 alongside brief references to civil rights; historically, however, the focus has been on disability as a medical issue. The 1996 platform introduced Medicare, and health care in general, as issues important to the disability community, a refrain that was reiterated in years to come. In numerous years, Democrats addressed concerns about long-term care, in some cases positioning disabled people as objects of care rather than independent people. Disabled veterans have also played a recurring role in the platform’s discussion of military issues. But beyond these topics—again, often approached from a dehumanizing angle—and the occasional lip service to concerns about discrimination and equal rights, until the 2000s, education was the only really consistent disability issue.

In 2000, however, the Democrats went big, building on eight years under President Bill Clinton, and the influence of his then-first lady. For the first time, disability wasn’t simply lumped under “civil rights.” The platform explicitly called out the need for protection from disability hate crimes, but it also began to introduce the idea that there were other issues of relevance to the disability with a discussion of the digital divide and the obstacles that held disabled people back. Almost 30 years after the passage of the Rehabilitation Act of 1973, which barred disability discrimination by government agencies and contractors, the Democrats were starting to embrace issues like accessibility and independent living, which also played a prominent role in 2000.

It was a hint that the party was starting to think about disability issues in a serious way, especially when in 2008, the Democrats discussed the shameful delay on ratification of the United Nations’ Convention of the Rights of Persons with Disabilities, took on the Community Choice Act, talked about the need to enforce IDEA, and, again for the first time, explicitly addressed voting rights issues. By 2012, they were also calling out discriminatory voter ID laws and their disproportionate effect on the disabled community.

That’s tremendous, though incremental, progress.

And this week, the efforts of a generation of disability rights activists are on display everywhere in Philadelphia, where Daily News columnist Ronnie Polaneczky observed that accessibility is a top priority across the city. The DNC is providing expanded accessible seating, wheelchair charging stations, service dog relief areas, Braille materials, closed captioning, American Sign Language interpreters, medication refrigerators, and more. That’s radical inclusion at work, and the result of incredible efforts by disability rights organizers—including the 400 delegates who disclosed disabilities.

Those same organizers have been hounding the presidential candidates, holding them accountable on disability over and over again. They’ve brought up concerns about independent living, wage disparities, education, access to services, accessibility, hate crimes, reproductive rights, the “marriage penalty” and government benefits, and casual disablism in campaign rhetoric and practices. Advocates leaned on the Clinton campaign until it began captioning its content, for example. RespectAbility sent journalists out on the trail, #CriptheVote organized Twitter, and Rev Up encouraged people to register to vote and get involved. The disability community may be more explicitly politically active this year than ever before, and the DNC has been responding accordingly.

Clearly in consultation with disability rights activists, the Democrats have brought a host of new issues into this year’s platform, acknowledging that disabled people are part of U.S. society. Some of the many issues unique to this year’s platform include: abolition of the subminimum wage, concerns about economic opportunities with an explicitly intersectional discussion of the racial wealth gap, affordable housing, accessibility at the polls, the role of disability in the school-to-prison pipeline, and the need for more accurate Census data.

Notably, in a platform that has loudly called for a Hyde Amendment repeal and pushed for other abortion rights, the Democrats have also reinforced the need for access to reproductive health for disabled people, a revolutionary clause that’s gone virtually unnoticed.

This is a platform—and convention—of aggressive inclusion, and it reflects a victory for disabled people in the United States. It does still lack some components the disability community would like to see, like a shoutout to the DIA, which Clinton supports. This is, however, the start of what looks like a robust and real relationship between the Democrats and the disability rights community.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.