Access to education: transgender students in Missouri's public education system.

• Author: Hayter, Cailynn
• Position: LAW SUMMARY

1. INTRODUCTION

   "While opponents of transgender access experience isolated victories, the overwhelming evidence is unmistakable. Prudent decision makers must swallow any feelings of animus, do what's best for the student, and save the district the headache of legal hassles." (1)

   Although discussion about the rights of transgender students has come to the forefront of our society within the past year, the issue has been debated and researched for decades. (2) This Note addresses the difficulty in protecting the rights of transgender students while also recognizing the need to provide security and privacy for all students. In balancing these concerns, how should schools proceed on the question that has most vexed public schools as they navigate the rights of transgender students: which restroom should transgender students use?

   Following Caitlyn Jenner (3) announcing herself to the world as transgender in the spring of 2015, (4) an increasing number of youth have begun to also openly identify as transgender.5 Activists across the United States saw Jenner's revelation as an opportunity to advocate for the transgender community. However, one commentator asserted Jenner's celebrity status distracts from the "lived experiences of trans [students] who continue to battle discrimination when accessing basic needs such as... education." (6) Studies and reports, showing that transgender students have a harder time being successful in school than non-transgender students, corroborate the notion that transgender students experience discrimination in schools. (7)

   Throughout the past several years, the American legal system has dealt with a number of cases regarding the right of transgender students to access the restroom and locker room of the gender with which they identify. (8) Unfortunately, courts have not been consistent when ruling on the issue of restroom access for transgender students, holding both for and against their right to the facilities of their choice. (9) This leaves school districts without clear guidelines for protecting non-transgender and transgender students with respect to facility access.

   In 2015, Missouri encountered the uncertainty that surrounds restroom access for transgender individuals. The Hillsboro School District made national news when the first openly transgender student at the district was allowed--but later denied--to use the restroom corresponding to her gender identity. (10) In Kansas City, another transgender student also made national headlines after participating as a female cheerleader and being crowned as the first transgender homecoming queen. (11) Both of these schools made internal decisions regarding how to handle these situations, highlighting that Missouri school districts currently have no statutory guidance from the legislature regarding what type of policy should be implemented when it comes to transgender students in restrooms. (12) Because no statute addresses the issue, school districts lack guidance when dealing with the practical concerns associated with accommodating students on a daily basis. This exposes each district to potential liability. (13) Having a statute would allow schools to worry less about liability and more about fulfilling the goals of the education system: to not only help students achieve in the classroom, but also to promote citizenship, diversity, and inclusion.

   Although the questions about whether transgender students have a right to use the restrooms of their gender identity in public schools have been centered on moral and religious concerns, this Note does not focus on those aspects. Instead, it focuses on legal precedent and the implications of developing law on the issue in Missouri. The first half of this Note discusses the federal and state legal backgrounds of transgender students' right to use the restroom of their gender identity, while the second half discusses the need for the Missouri General Assembly to adopt a specific statute protecting this right.

2. LEGAL BACKGROUND

   Transgender students normally sue under federal law when bringing claims against districts that refuse to allow them to use the restrooms that reflect their gender identity. (14) However, many states have enacted laws that explicitly define the policy to be implemented; in those circumstances, transgender students may choose to bring claims under state law. Presently, California leads the country in its development of policies regarding transgender students, adopting the most explicit policy in favor of restrooms based on gender identity. (15) Missouri, on the other hand, has no law establishing the right of transgender students to access the facilities of the gender with which they identify. Part A of this section begins with an explanation of the federal protections transgender students have attempted to utilize in asserting their rights. Part B explores the patchwork of state protections that have developed around the country in an attempt to provide clarity to school administrators.

   1. Federal Protections

      Because federal law does not currently prohibit discrimination against students on the basis of gender identity, the transgender community has relied on other laws for protection. (16) Title IX, the Fourteenth Amendment, and the First Amendment have been used to challenge district practices. (17) However, none of these laws have proven to be much help to transgender students seeking access to restrooms and locker rooms of their gender identity.

      1. Title IX

         Title IX is a federal law prohibiting sex discrimination in schools. (18) The U.S. Department of Education ("Department") has concluded discrimination or harassment based on an individual's gender identity is illegal sexual discrimination. (19) However, the Department's instruction is only non-binding guidance, and many states decline to follow its advice, both generally and in specific application to transgender restroom use. Those who agree with segregating restrooms based on biological gender often argue that restricting the use of school facilities is not considered discriminatory under Title IX. (20)

         A federal district court in Virginia recently refused to recognize Title IX as an avenue to protect transgender students. (21) Virginia schools, like Missouri schools, lack statutory instruction on the transgender student restroom issue. (22) The court held the school board policy, which denies transgender students the right to access and use the restroom of their gender identity, does not violate Title IX. (23) The court concluded that the guidance from the Department was not operative because it contradicted its own policy that requires "schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances." (24)

         However, on appeal, the U.S. Court of Appeals for the Fourth Circuit held that the Title IX claim could possibly provide relief for transgender students wishing to use the restroom of their gender identity. (25) The court therefore reversed the district court's dismissal of the Title IX claim, but the success of that claim is yet to be seen on further appeal. (26) The Fourth Circuit also reversed the district court's denial of a preliminary injunction allowing the student to use the restroom based on gender identity. (27) Plaintiff's case also proceeded under the Fourteenth Amendment. (28)

         In March 2015, the U.S. District Court for the Western District of Pennsylvania held a university did not violate Title IX when the institution prohibited a transgender male from using sex-segregated restrooms and locker rooms designated for men. (29) The court found "the University's policy of requiring students to use sex-segregated bathroom and locker room facilities based on students' natal or birth sex, rather than their gender identity, does not violate Title IX." (30) While there is still debate about whether Title IX protects transgender students, one thing is clear: Title IX contains no explicit language unambiguously prohibiting gender-segregated restrooms in schools. And even with guidance stating Title IX requires transgender students to be able to use the restroom of their choice and the Fourth Circuit's holding that a transgender student plaintiff could possibly win on such a claim, a Title IX claim on this issue has yet to play out throughout the entire trial process. Therefore, as of now, Title IX does not require schools to adopt policies allowing transgender students to use the restroom of their gender identity.

      2. Fourteenth Amendment

         The Fourteenth Amendment to the U.S. Constitution states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (31) The Supreme Court has interpreted this language to ensure that all citizens enjoy equal protection under the law. (32) Over time, the Supreme Court has applied different criteria for determining whether discrimination toward certain classes of people was or was not constitutional under the equal protection doctrine of the Fourteenth Amendment. (33) Suspect classes generally include those classes that have previously been discriminated against. (34) This classification receives the highest level of scrutiny and is normally not upheld as being constitutional. Currently, suspect classes include race, national origin, religion, and alienage. In evaluating the existence of these suspect classifications, the Supreme Court has often focused on "the immutability of discrimination-inducing traits." (35) Some courts have found transgender individuals satisfy this criterion due to having a physical or psychological immutable trait, classified as Gender Dysphoria ("GD"). (36)

         Even considering this immutable trait, many...