Education Executive's Update

American Schools Tested by Gender Neutrality

Throughout the nation, schools and administrators are adopting policies that recognize the presence of transgender and gender nonconforming students in schools. This may be the result of growing support for research indicating that negative effects are caused by enforcing fixed notions of what it means to be a boy or a girl, and that these effects may be especially harmful when experienced in a learning environment.1 As a result, school administrators across America have begun to develop policies addressing gender neutrality with an eye to providing a learning environment that is safe and inclusive for every child in their care. Although critics may oppose accommodating non-traditional gender students, some minor, noncontroversial changes can meet everyone’s needs and reduce some of the harm these students claim.

NEBRASKA’S PURPLE PENGUINS

A school district in Nebraska recently came under fire when media reports surfaced that stated that the district banned the use of the words “boys” and “girls” and required teachers to call children “purple penguins” instead. The Superintendent of Lincoln Public Schools, Dr. Steve Joel, released a statement to address what the district considered to be media misrepresentation of one school’s decision to incorporate teacher training materials that encouraged gender inclusivity.

In his statement, Dr. Joel refuted the idea that the district banned gender-specific words and the adoption of the “purple penguins” label. He explained that a committee tasked with examining equity issues and their effect on students obtained teacher training materials from Gender Spectrum.2 Gender Spectrum is an organization that provides instruction and training to help ensure that children experience a gender inclusive environment.3 The materials provided by Gender Spectrum encouraged teachers to incorporate the following ideas to help create a gender inclusive environment:

  • Don’t use phrases such as ‘boys and girls,’ ‘you guys,’ ‘ladies and gentlemen,’ and similarly gendered expressions to get kids’ attention.
  • Line children up by whether they prefer “‘skateboards or bikes/milk or juice/dogs or cats/summer or winter/talking or listening’” rather than telling them to “‘line up as boys or girls.
  • Create classroom names and then ask all of the ‘purple penguins’ to meet on the rug.4

Dr. Joel further explained that the training materials had not been adopted as district policy but were merely offered to the staff for discussion and consideration.5 He emphasized that the district strives to ensure that all of its students feel a sense of belonging, and he expressed pride in the teachers’ and administrators’ willingness and openness to gain a better understanding of student needs.6

These suggestions are easy to implement and make sense for those times when students need to be divided into a more manageable group that is not based on either sex or gender. The challenge occurs when a group has traditionally been separated based on sex for privacy reasons.

BUT WHAT ABOUT THE RESTROOMS?

To address key concerns, policies on gender neutrality must reach beyond the use of gender inclusive pronouns. They may affect, for example, a use of space such as the bathroom.

In Kastl v. Maricopa County Community College District, a transgender faculty member began presenting as a female at work and using the women’s restroom on the college campus. See 325 Fed. Appx. 492, 493 (9th Cir. 2009). After receiving complaints that a man was using the women’s restroom, the school required the faculty member to use the men’s restroom until the faculty member was biologically female.7 The school rejected the faculty member’s female driver’s license as proof of gender, and terminated the faculty member when the faculty member refused to use the men’s restroom.8

The Ninth Circuit found that the faculty member stated a prima facie case for gender discrimination under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. However, the school offered sufficient evidence that it banned the faculty member from using the women’s restroom for safety reasons. 325 Fed. Appx. 492, 493 (9th Cir. 2009). Because the faculty member did not put forth sufficient evidence that the school’s termination was based on gender, the faculty member’s case was unsuccessful. Id.

On the other hand, California, for example, more recently enacted a law that gives transgender students the right to use the bathroom of their gender identity.9 Compare that to North Carolina’s legislation found in HB2, which requires all people to use the bathroom that corresponds to the sex on their birth certificate.

At the time of writing, the most recent and applicable case law is G.G. v. Gloucester County School Board out of Virginia, in which the Fourth Circuit held 2 – 1 that “[w]hen a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity.”10 The school voted to require students to use restrooms based on their biological sex, citing a Department of Education regulation found at 34 C.F.R. § 106.33, which permits schools to provide “separate toilet, locker room, and shower facilities on the basis of sex.”11 The court found the language to be ambiguous: “Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.”12 The court explained that the district court should have interpreted the cited regulation based on a 2015 opinion letter by the Office for Civil Rights which stated that “a school…must treat transgender students consistent with their gender identity”…”[w]hen [it] elects to separate or treat students different[ly] on the basis of sex.”13 The court vacated the denial of a preliminary injunction the student sought and remanded the case to the district court for consideration under the evidentiary standards articulated by the Fourth Circuit.14

Similar situations involving transgender and gender nonconforming students and bathroom use continue to arise in schools, and schools should be aware of the potential policy implications involved in resolving such situations, regardless of the manner in which the school responds. These issues may need to be addressed as facilities are constructed and refurbished, including the use of single-user facilities, separate stalls, and other privacy considerations.

GENDER NEUTRALITY IN YOUR SCHOOL

Approaching gender neutrality and inclusiveness with sensitivity, candor, and full disclosure will help guide schools as they navigate this controversial issue. A recent CNN article proposed the implementation of six steps that would create a gender inclusive environment in schools:

  1. Don’t separate children by gender
  2. Start the day with inclusive language and stick with it
  3. Feature diversity in books, posters and other workbooks
  4. Create a professional development plan to help educators
  5. Have strong policies to support transgender students
  6. Engage the entire school community15

“Experts say educators need to develop a shared understanding of gender identity and language to be able to communicate with students and parents.

[T]hey need to know what to look for, and they need to believe that they have the support of the school.”16 In school, the focus should be educational instruction. If students are distracted by gender specific language that isolates them, this hinders a school’s goal. Simple changes that create a more inclusive environment may help students focus on educational pursuits.

FINAL WORD

A district’s position on gender neutrality — whether to address or ignore — may spark debate from parents, politicians, the media, and the community. School administrators should keep abreast of developments in policy discussions and court decisions regarding transgender and gender nonconforming students, in order to continue their best efforts to serve all students. Schools also may wish to seek additional training and source materials before announcing the adoption of policies that will affect all students, not just transgender and gender nonconforming students, and school communities. Changes or updates to policies should be made after informed discussion. School administrators should always ask their legal counsel to review policy changes to confirm adherence to the myriad of rapidly evolving school laws.

REFERENCES

1 Emanuella Grinberg, 6 Ways to Embrace Gender Differences at School, CNN, (Jan. 3, 2015 at 3:53 PM ET), www.cnn.com

2 Joe Dejka, Lincoln Schools Chief: District Not Replacing Terms ‘Boys, Girls’ with Gender-Neutral Ones, OMAHA, (Oct. 9, 2014 at 6:16 PM), www.omaha.com

3 Katherine Timpf, School Told to Call Kids ‘Purple Penguins’ Because ‘Boys and Girls’ is not Inclusive to Transgender, NATIONAL REVIEW, (Oct. 8, 2014 at 1:50 PM), www.nationalreview.com

4 Id. (internal quotations omitted)

5 Joe Dejka, Lincoln Schools Chief: District Not Replacing Terms ‘Boys, Girls’ with Gender-Neutral Ones

6 Id

7 Id

8 Kastl v. Maricopa County Cmty. College Dist., 2004 U.S. Dist. LEXIS 29825, at *4 (D. Ariz. 2004)

9 Chris Kenning, Ky. Bill Targets Transgender School-Bathroom Use, USA TODAY, (Jan. 19, 2015 at 8:48 PM) www.usatoday.com

10 2016 U.S. App. LEXIS 7026 (4th Cir. 2016)

11 See id., at *10-11

12 Id., at *22

13 Id., at *7 (internal quotations omitted)

14 Id., at *37

15 Emanuella Grinberg, 6 Ways to Embrace Gender Differences at School

16 Id

This article originally appeared in the May 2016 issue of School Planning & Management.

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