New guidelines clarify transgender students' rights
A group that represents school boards across Oregon praised the release this month of new state guidelines for how schools treat transgender students.
The document, which suggests schools allow transgender students to choose the names and bathrooms of their preference and select the intramural sports teams on which they play, could prove to be controversial in some districts. However, the Oregon School Boards Association said it provided crucial guidance to school officials who are increasingly raising questions about how to handle the situations.
(The questions are) coming from everywhere, said Spencer Lewis, member services attorney and policy specialist at the OSBA. Weve had big districts, weve had small districts, weve had Eastern Oregon districts ... I know Portland has had (transgender student) procedures in place for several years, but that doesnt mean the communities around Portland arent asking questions as well.
Lewis, who was involved in developing the new state guidelines, said theres definitely some value in (Oregon Department of Education) giving a foundation to districts saying, Heres the law thats out there, here are some paths you can take to avoid litigation, frankly.
The ODEs guidelines dont come without pushback from some parents though, who believe the guidelines for transgender students may violate other students rights.
Parents Right in Education, a watchdog group led by Lori Porter and actively involved in discouraging the Hillsboro School Board from allowing birth control to be prescribed at the School-Based Health Center, put out a newsletter May 17 claiming that Oregon School Districts Are Being Bullied.
The Oregon Department of Education, the U.S. Department of Education and the Justice Department are using the Title IX law to push open access to bathrooms and showering facilities; a law which actually contains not one reference to gender but rather uses the word sex to indicate biological males and females, the newsletter states.
This ODE Guidance document is not meant to provide legal advice but it does provide substantial pressure as well as the expectation that districts will comply.
The issue reached Capitol Hill last week, when the Obama administration decreed that public school districts must allow transgendered students to use bathrooms corresponding to their identified gender or risk losing federal funding.
The Oregon School Boards Association has previously discouraged districts from adopting local policies on transgender students, and instead encouraged the districts to make sure their non-discrimination polices are up-to-date and comply with state law on protections for transgender and gender non-conforming students.
Although the Oregon Department of Education guidelines are new, they largely reflect existing laws and legal precedents, according to Lewis and the ODE.
Under state law, it is illegal to discriminate against students at public schools that receive state funding, including based on their gender identification, according to ODE guidelines. It is also illegal for programs that receive federal funding to discriminate against people on the basis of sex, and the U.S. Department of Educations Office of Civil Rights has determined federal law protects transgender and non-gender conforming students.
ODE officials suggested strategies for districts to protect students gender identifies in school records, to make sure teachers and administrators refer to a student by his or her preferred name and pronoun to avoid outing the student. As with most other issues involved with creating a safe and supportive environment for transgender students, the best course is to engage the student, and possibly the parents, with respect to name and pronoun use, department leaders wrote in the document.
The ODE warned the guidelines are not legal advice, but since they are based on anti-discrimination laws and precedents schools could risk losing funding or going to court if they ignore them.
It would depend on what, if any, laws were being violated, ODE spokeswoman Amy Wojcicki wrote in an email. If it is a Federal law, the U.S. Department of Civil Rights would have jurisdiction. If it is a state law being violated (such as harassment or bullying), after receiving complaint and investigating, ODE would issue an order against the district and if they did not comply there would be possible withholding of state funds.