Many independent schools have developed or are in the process of developing policies and procedures regarding students who are transgender or gender non-conforming. Often, the laws that govern these issues are not applicable to independent schools, leaving schools with a lack of firm legal guidance. With that, schools take many different approaches, in the interest of ensuring that their policy is consistent with and reflects their unique culture and community. Regardless of the approach an independent school takes, and as with any policy, it is paramount that the policy be communicated to the community, including by ensuring it is included in the parent/family handbook, to ensure that there is a shared, common understanding between the school and its community members.
The task of developing such a policy may be daunting, as the issues to be considered and addressed go beyond merely bathroom and locker room usage. To ensure that your school’s policy has considered the relevant issues, just remember PRIDE: Parental Communications, Rooming Situations, Information Sharing, Documents, and Educational Components.
Parental Communications
Part of any policy is setting expectations for the community. The same principle applies in developing a policy regarding transgender and gender non-conforming students. At the outset, determine what your school’s policy will be on communicating with parents when students disclose to a counselor or advisor that they are questioning their gender identity, or when a student requests to use a different name or pronoun in class. Some schools take the position that they will not share that information with the student’s parents unless the student has authorized them to do so. Other schools take the position that they will work with the student toward inclusion of and disclosure to the parents. It is imperative that whatever your school determines in this regard be communicated to parents, so that parents know what to expect.
Rooming Situations
School campuses have many different spaces where usage is generally guided by one’s sex. These include not only physical spaces, like locker rooms and bathrooms, but also other affinity groups and other such organizations. When students are off campus on a school trip, for example, rooming situations are generally further designated by sex. In your school’s policy, determine and outline how your school will manage access to spaces that are typically gendered. Questions to consider are:
- Will there be an all-gender bathroom or locker room?
- Will students be permitted to use the bathroom or locker room that aligns with their gender identity, regardless of the sex assigned at birth?
- Will students be permitted to attend and engage with affinity groups that correlate with their gender identity?
- How will the school manage sleeping and rooming situations on trips, ensuring that students feel supported but also not compromising student safety?
- Are there other, non-stigmatizing alternatives that can be made available regarding bathrooms, locker rooms, and rooms on travel?
Information Sharing
While parental communication is one part of the information-sharing process, so too are communications within the school community. Schools developing their policies should consider whether and when information about a student’s gender identity should be shared with additional members of the faculty, staff, and administration. Generally speaking, school employees who have a need to know such information should be apprised. While division heads and school counselors will generally have a need to know, as the circumstances evolve, the circle may expand to include classroom teachers, athletic coaches, and trip chaperones. Having a general understanding of when and what types of information will be shared will avoid confusion and potentially damaging missteps.
Documents
Your school’s policy should also address whether and when the school will revisit the name and gender markers on school documents. Generally speaking, it is prudent not to change the student’s name on any official legal documents, such as the official transcript, unless and until there has been an official, legal name change and the school has the applicable legal documents, generally a court order, reflecting that a legal name change has occurred. There may be other documents where the school can make internal changes before a legal name change has occurred — for example, the student’s email address or name on report cards. Identifying and explaining when and where such changes can occur will continue to create a common understanding.
Educational Components
Consider including educational components in the school’s policy as well. For example, consider briefly explaining the philosophy behind the school’s approach to the policy, including any curricular components such as books, speakers, and discussions in health and wellness classes.
Consider also including a definitional section, outlining the meaning behind commonly used terms to ensure that all are aware of and understand the terminology involved, to better enable them to appropriately use the correct terms.
The Venable Independent School Law team is available to assist schools in navigating the above issues. If you have any questions, please contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, or Ashley E. Sykes.