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Bryn Mawr, Pennsylvania

The Dangers of School District Refusals to Affirm Students’ Genders, and How to Fight Back

This past Monday, the Perkiomen Valley School District’s governing board approved a policy barring transgender children from accessing the multi-user restrooms that conform with their gender identities.  It did so because a parent in the District claimed that his child was rendered “upset and emotionally disturbed” by a suspicion that a trans girl was using the girl’s bathroom.  That parent alleged that trans girls (who are girls) using girls’ bathrooms is “a simple matter of biology, safety, [and] personal space.

Why is that a problem?

Numerous school districts in our region and across the United States of America have enacted or are considering similar anti-trans policies as part of a broader effort by authoritarians, hate groups, and other anti-trans bigots to demonize trans persons as inherently dangerous and to cast being trans as inherently wrong.  Such efforts to falsely portray trans children as a threat to their peers are frequently cloaked with the Orwellian justification of “parental rights.”  Authoritarians, hate groups, and other bigots then use the language of “parental rights” to justify deploying trumped-up fears of sexual violence against children (usually cis girls and, notably, never trans children, who, as a population, experience sexual violence in their lives at shockingly high rates).  They do so to trigger our legitimate desires to protect our children and corrupt that legitimate desire into something far more sinister: The dehumanization of gender diverse persons.

These persistent and widespread efforts at dehumanizing trans children for simply being who they are have deadly consequences: Data show that 82% of trans persons have considered suicide and 40% have attempted suicide.  Interpersonal microagressions are a statistically significant contributor to suicidality in trans persons.  So, too, are school belonging and internalized self-stigma.  See Suicidality Among Transgender Youth: Elucidating the Role of Interpersonal Risk Factors, Austin, et al., Journal of Interpersonal Violence Vol. 36 Issue 5-6 (2020). 

Put differently, when our society treats trans youth as less than the full humans that they are, when our society tells trans children that trans people don’t belong in gendered spaces in a way that conforms with their gender identity, it drives trans and other gender diverse children to ideate and attempt suicide.  Anti-trans bigotry kills our gender diverse children.

What can we do about it?

It may feel to parents of trans children like we face overwhelming odds in standing up for the rights, dignity, and inclusion of our children.  Given the surge of anti-trans advocacy and policies by both authoritarians in government and hate groups like Moms for Liberty since the 2016 election, that feeling is certainly understandable.  But it is important to know that our laws prohibit these kinds of discrimination against trans children, including in our schools.  There are multiple anti-discrimination laws that protect trans children in Pennsylvania and can be used to fight back on behalf of our trans, non-binary, and other gender diverse children.

The first and best-known of these protections is Title IX, which prohibits discrimination on the basis of sex in, among other things, primary and secondary schools that accept federal funding in the United States.  In the case of Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the Supreme Court ruled that discrimination based on sexual orientation and gender identity is inherently discrimination on the basis of sex, and therefore prohibited by Title VII in an employment context.  The United States Department of Education has since issued guidance that because of the textual similarities between Title VII and Title IX, “Addressing discrimination based on sexual orientation and gender identity thus fits squarely within [the Office of Civil Rights]’s responsibility to enforce Title IX’s prohibition on sex discrimination” and that “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”  That includes every public school and charter school in Pennsylvania.

The next set of protections are the Pennsylvania Human Relations Act (PHRA) and Pennsylvania Fair Educational Opportunities Act (PFEOA).  The PHRA applies to primary and secondary schools in Pennsylvania, as well as colleges and universities; the PFEOA applies to vocational and technical schools at the secondary level and to colleges and Universities.  They, too, were recently revised to make clear that they prohibit discrimination against children based on sexual orientation and gender identity.

If your child is facing discrimination on the basis of gender identity in primary school, secondary school, or vo/tech, you can invoke the protections of Title IX and the PHRA on your child’s behalf to challenge discriminatory policies like bathroom access bans, bans on participation in athletics in a way that conforms with your child’s gender identity, and discrimination against your child by school personnel through misgendering and other expressions of bigotry against your child.

Another set of statutes that may apply for gender diverse children with disabilities is the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 and 1974.  Under both statutes, children with disabilities are entitled to a free, appropriate public education.  Being in a safe school environment is a prerequisite to being in an appropriate learning environment, and a school environment that exposes gender diverse children to discrimination and exclusion is not safe.  So if your gender diverse child with disabilities is facing discrimination on the basis of either gender identity or disability—or both, as discrimination is frequently intersectional—you may be able to assert rights under the IDEA and Section 504 to make changes to your child’s educational environment and challenge discriminatory practices and procedures.

How do I fight for my child?

The Department of Education Office of Civil Rights, which enforces Title IX in relation to educational institutions, has a self-explanatory complaint form online that you can fill out and submit.  The PHRC also has an Education Intake Questionnaire that you can fill out (in addition to calling in and visiting a regional office) to initiate a complaint under the PHRA and/or PFEOA.  Similarly, the Pennsylvania Office of Dispute Resolution has an online complaint notice form that you can fill out and submit to request a due process hearing on behalf of your gender diverse child with disabilities if you believe that your school district is denying your child a free, appropriate public education.

In addition, under Title IX, your local school district should have a Title IX coordinator listed on its website, to whom you can submit District-specific grievances concerning discrimination against your gender diverse child.  Please be aware that you do not need to pursue this District-specific process before complaining to OCR or going to court.  So if you don’t trust your school district to do the right thing because it put LGBTQIA+ children at risk by restricting bathroom access, or requiring the removal of pride flags, or banning age-appropriate books because they regard LGBTQIA+ persons as normal and complete human beings, you are not stuck with your district’s Title IX enforcement process.

Finally, with Title IX, you can also go directly to filing a federal civil rights claim against your school district on behalf of your child.  For the PHRA, PFEOA, IDEA, and Section 504, though, you likely need to file an administrative complaint first to accomplish what courts call “exhaustion of administrative remedies.”

Do I need to hire a lawyer to fight for my gender diverse child?

No.  You can file a grievance with your school district, a complaint with OCR, the PHRC, and/or the Office of Dispute Resolution, and a civil case in Federal court or Pennsylvania Court without the help of a lawyer.  This is called proceeding “pro se,” or on one’s own behalf.  But you should know that your school district will certainly be consulting with its lawyers and that it will be represented by counsel in any claim or case that you bring against it on behalf of your child.  If you proceed pro se, you will need to be prepared to be up against an opponent that is knowledgeable about the applicable law and experienced at making arguments to protect the school district.  A lawyer can help you even that playing field.

In addition, a lawyer can help you determine whether you have enforceable claims of discrimination and, if you do, help you refine those claims to make them more forceful and likely to succeed.

All of these things take time.  It could be years before my complaint makes any meaningful changes.  How can I help my child in the meantime?

Accept your children.  Affirm their gender identities.  Let them know that you have their backs in the face of bigotry—especially the bigotry of people in power.  Help them navigate the challenges they necessarily face in a society that is still largely cisheteronormative.  Data show that family acceptance of trans and gender-diverse children helps those children be healthier, more stable, and safer.  And the most important forms of support, according to the data, appear to be coping ability, appreciation and affection, and positive communication.

In other words, love your children for who they are and tell them that you do.  Every day.

The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.

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The information provided on this website does not, and is not intended to, constitute legal advice.    All information, content, and materials available here are for general informational purposes only.  For information and guidance on your particular legal issues, please consult with an attorney licensed in your jurisdiction of residence.

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