A directive issued by the U.S. Department of Education and Department of Justice in May made clear the Obama administration’s position on rights of transgender students in K12 schools: Schools must allow transgender students to use restrooms and locker rooms that correspond to their gender identity, not their birth certificate.

LGBTQ advocates call it a watershed moment, when the federal government sent the strong message that others’ discomfort over a student’s differences is not a legitimate reason to deny the student’s civil rights.

"Sometimes people have fears based on stereotypes about what they think will happen in that locker room—in truth the transgender student is probably more afraid and more sensitive about privacy issues than other students," says Olabisi Okubadejo, an attorney at Ballard Spahr LLP in Phoenix, who works with schools on reviewing and drafting policies regarding transgender students.

A student, parent or advocacy group that alleges a violation can file a complaint with the departments of education and justice, which could lead to a Title IX investigation, Okubadejo says. The DOE has the authority to withhold funding from a noncomplying district, but more likely would allow the school to revise or develop policies to meet the terms of Title IX.

Okubadejo recommends administrators focus on drafting and implementing strong district-wide gender identity protection policies, staff training, gender identity recordkeeping, and outreach to all parents to help them understand protocols for ensuring the safety of all students.


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