Human Resources |
Transgender individuals make up just 0.6 percent of the population, but schools should prepare policies to address them because of potential complications involving accommodations as well as a risk of bullying and harassment, according to Susan Guerette, partner at Fisher Phillips law firm. “Schools are usually trying to be very sensitive to these issues and want to be ahead of the curve,” she said. She outlined legal obligations and best practices in the recent NBOA webinar, “Schools in Transition: The Legal Landscape of Transgender Students or Faculty.”
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 Furthermore, Obama-era guidance about transgender accommodations is no longer applicable.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 employers 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.”
Currently 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?”
Sex is the biological sex of someone at birth, whether they’re biologically male or female.Gender is the person’s sexual identity as a social or cultural construct. It’s based on behavior or dress associated with males or females.Gender identity is one’s own gender identification, which could be the same or the opposite of one’s biological sex.Gender identity discrimination is treating someone differently based on the gender that they identify with.Sexual orientation is the status of being straight, gay, asexual or bisexual.Transgender people live or wish to begin living in the gender role associated with the other sex from the one in which they were born.
Agender people find they have no inner sense of their gender identity.Bigender people often change between genders or are both at once.Gender fluid people feel that they have different gender identities at different times.Neutrois is a gender identity for those who are neither female nor male but neutral.Non-binary is an umbrella term for all those who do not identify as just male or female all the time.
Next, “Make sure you have community involvement,” urged Guerette, meaning that the board, head and 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:
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.#DiversityandInclusion#Policy#Legal
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