There is no federal law that prohibits gender identity or sexual orientation discrimination. Under the Obama administration, the Equal Employment Opportunity Commission, a federal agency that enforces civil rights in the workplace, used case law to argue that transgender individuals are protected. Under Trump, however, the EEOC is unlikely to intervene in transgender cases, Guerette said. Furthermore, Obama-era guidance about transgender accommodations is no longer applicable. “Unfortunately this has caused among our inconsistent legal rights. What we’re finding is that since there’s no federal law, we’re now having to look to our state and local governments for guidance.”
22 states have laws prohibiting discrimination against individuals based on gender identity or sexual orientation, as do some cities. Guerette said the first question school administrators should ask as they frame school policy is, “What is your school’s obligation under the various laws?”
Next, “Make sure you have community involvement,” urged Guerette, meaning that the board, head other top administrators need to be involved in decision-making. “It’s going to take your whole school community to do this even close to right.” Start early and prepare well before any policy is put into action, she added.
When crafting a policy, ask if the school will accommodate sexual orientation? Will the school also accommodate gender identity? (See glossary above for definitions of relevant terms.) Once those questions are answered, administrators should think about how the school will handle the following issues and others, as needed:
- Dress Code
- Locker rooms
- Field trips
- Name usage
- Pronoun usage
- Official school documents
What issues might schools face, even if you’ve crafted a nuanced policy? “The blowback … likely is going to be from your own community,” said Guerette. “Most cases arise because the school accommodates someone and other people in the community object to that accommodation. Or the school doesn’t accommodate, and again people feel the opposite, saying it should be addressed and accommodated.”
For more information on crafting a school policy, rolling out school communications and the impact to school handbooks, documents, trips, bathrooms, staff training and more, view the webinar or read the slides and transcript.