Parent Quizzes School’s Transgender Policy

CREST HAVEN – Recently, the Herald received an inquiry from a concerned parent with a daughter at Cape May County Technical High School. The parent said that the school was allowing a boy who identifies as a girl to use the girls’ locker room with girls present.
That parent went on to say that some of the girls felt uncomfortable with the arrangement, so much so, the parent alleged, that it negatively impacted their performance in class. The parent said that several parents had complained to the school and that school officials had “done nothing.” 
Cape Tech
There is very little to say about the specifics of the allegations concerning Cape Tech.
Superintendent Dr. Nancy Hudanich issued a statement that, “I will not discuss confidential student matters nor confirm whether or not we have students who identify as transgender students in our school.”
Hudanich went on to state, “Our district follows the law regarding transgender students while ensuring that all students feel safe and supported in school.”
Hudanich also explained:
“Consistent with the law, we make accommodations for students where appropriate, based upon the law and the guidance from the state Department of Education (NJDOE) regarding transgender students. It is the practice of the school district that if any individual student feels uncomfortable for any reason in school they should go speak to their guidance counselor or building administrator.”
Hudanich concluded, “Our goal is to educate students in an environment free from discrimination while protecting the health, safety, and welfare of every student.”
Accomplishing that goal when students and parents feel very differently about issues like access to sex-segregated facilities such as restrooms and changing rooms can be a very difficult task, leaving some parents to feel the school is not responding to their concerns. 
The Issue
The issue raised by that parent’s inquiry can be seen in school districts across the country. State-authored guidance for school district administrators varies greatly.
Federal direction is unsettled with the Trump administration withdrawing Obama-era guidance. Litigation abounds with varying results on key issues. 
The legal battles could end up in the Supreme Court as part of the court’s term beginning in October. A case, Doe v. Boyertown School District, has been distributed to the justices for a decision on whether or not to accept it for argument in the fall. The court’s website, as of March 27, showed the case rescheduled for consideration as part of the court’s weekly conference.
Those involved in the case that potentially may make the court’s fall docket go beyond the usual petitioners and respondents. A wide range of groups attached themselves to the litigation in the hopes of bringing clarity to an evolving area of the law.
These groups include The National Center for Law Policy, the Institute for Faith and Family, the American Civil Liberties Union, the Women’s Liberation Front, the Great Lakes Justice Center, the Christian Education Association, Constitutional Law Scholars, and Hands Across the Aisle. 
What is the Law?
Following the law with respect to transgender rights can be a complicated and intricate process fraught with opportunities for opposition.
First, one has to consider where the applicable law emanates. Strong federal direction on issues of transgender access to sex-segregated facilities and programs has changed, leaving a great deal more leeway for the states to set policy.
In May 2016, the U.S. Department of Education issued a “Dear Colleague” letter stating that schools should, “Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.” This directive came from the Obama-era Education Department.
In February 2017, another “Dear Colleague” letter from the Trump administration Departments of Education and Justice withdrew the guidance given in the May 2016 letter and placed an emphasis on, “The primary role of the states and local school districts in establishing education policy.”
Both the 2016 and 2017 guidance letters emphasized that transgender students were to be protected against “harassment, intimidation, and bullying.” Where they differed was in the explicit removal by the Trump administration of any language requiring access to sex-segregated facilities based on gender identity.
Hudanich pointed to the guidance from the NJDOE. That guidance is contained in a seven-page document (https://bit.ly/2O9SFzR) that makes the following major points:
•    “A school district shall accept a student’s asserted gender identity; parental consent is not required.”
•    “A student need not meet any threshold diagnosis or treatment requirements to have his or her gender identity recognized and respected by the district.”
•    “There is no affirmative duty for any school district personnel to notify a student’s parent or guardian of the student gender expression.”
•    Schools are directed to confidentially “ascertain the student’s preference on matters such as chosen name, chosen pronoun to use, and parental communications.”
•    “A transgender student shall be allowed to dress in accordance with the student’s gender identity.”
•    With respect to gender-segregated activities or classes, “all students must be allowed to participate in a manner consistent with their gender identity.”
•    “All students are entitled to have access to restrooms, locker rooms and changing facilities in accordance with their gender identity.”
States vary greatly on each of these issues. Guidance issued by the Texas Association of School Boards calls many of the issues involved with transgender student rights “an evolving area of the law” and urges “school communication with a student’s parents to determine preferences regarding gender-specific facilities.”
This is but one example of many where some states do not go as far as New Jersey. The New Jersey guidance was produced in September 2018 by Gov. Phil Murphy’s NJDOE.
States with similar directives aimed at gender identity discrimination in public schools include New York, California, Oregon and Washington. Among those states with what the Transgender Law Center terms “negative gender identity policy” are South Carolina, Ohio and West Virginia. 
What are the Numbers?
The Williams Institute at the UCLA School of Law produced a study in 2017 that concluded that 150,000 youths between the ages of 13 and 17 identify as transgender in the nation. The New York Times, picking up on the same study, stated that 1 in 137 students in that age group identifies in this way.
The study stated that an additional 1.4 million Americans ages 18 and older identified as transgender. In terms of geographic distribution, the study stated that distribution tends to mirror state population size with the largest transgender populations being in California, New York, Texas, and Florida. The smallest populations appear in North Dakota, Vermont, and Wyoming. 
The Privacy Argument
The lightning rod issues involving school policy for transgender students revolve around access to gender-segregated programs and facilities. Should transgender students be allowed to use the changing room and restrooms that align with their gender identity? Should they be allowed to compete in gender-segregated sports?
The response of those opposed to policies that permit access to facilities based solely on the student’s preference is that such policies invade other students’ rights of privacy. Those suing to overturn policies that grant access to gender-segregated facilities claim that making such accommodations for transgender students violates the “bodily privacy” of non-transgender students.
Along with the Boyertown case that may make its way onto the Supreme Court docket, Parents for Privacy v. Dallas School District No. 2 is awaiting a hearing in the Ninth Circuit Court of Appeals. The case, out of Dallas, Ore., was brought by students and parents who want to overturn the school district policy and force all students to use restrooms, lockers, and showers that match their biological sex. Once again, amicus curiae (an impartial adviser, often voluntary, to a court of law in a particular case), friends of the court, will be filing supporting documents on both sides of the question.
School districts do not free themselves from these issues by providing separate gender-neutral facilities. The 11th Circuit Court of Appeals was asked to decide the case of a transgender student who sued a Florida school because district policy required the student to use only gender-neutral restrooms.
To contact Vince Conti, email vconti@cmcherald.com.