American Schools Tested by Gender Neutrality
- By Katie Anderson, Amanda Costello
- 05/01/16
Throughout the nation, schools and administrators are adopting policies that recognize the presence of transgender and gender nonconforming students
in schools. This may be the result of growing support for research indicating that negative
effects are caused by enforcing fixed notions of what it means to be a boy or a girl, and
that these effects may be especially harmful when experienced in a learning environment.1 As a result,
school administrators across America have begun to develop policies addressing gender neutrality
with an eye to providing a learning environment that is safe and inclusive for every child in their care.
Although critics may oppose accommodating non-traditional gender students, some minor, noncontroversial
changes can meet everyone’s needs and reduce some of the harm these students claim.
NEBRASKA’S PURPLE PENGUINS
A school district in Nebraska recently came under fire when
media reports surfaced that stated that the district banned the
use of the words “boys” and “girls” and required teachers to
call children “purple penguins” instead. The Superintendent of
Lincoln Public Schools, Dr. Steve Joel, released a statement to
address what the district considered to be media misrepresentation
of one school’s decision to incorporate teacher training
materials that encouraged gender inclusivity.
In his statement, Dr. Joel refuted the idea that the district
banned gender-specific words and the adoption of the “purple
penguins” label. He explained that a committee tasked with
examining equity issues and their effect on students obtained
teacher training materials from Gender Spectrum.2 Gender
Spectrum is an organization that provides instruction and
training to help ensure that children experience a gender
inclusive environment.3 The materials provided by Gender
Spectrum encouraged teachers to incorporate the following
ideas to help create a gender inclusive environment:
- Don’t use phrases such as ‘boys and girls,’ ‘you guys,’ ‘ladies
and gentlemen,’ and similarly gendered expressions to get
kids’ attention.
- Line children up by whether they prefer “‘skateboards or
bikes/milk or juice/dogs or cats/summer or winter/talking or
listening’” rather than telling them to “‘line up as boys or girls.
- Create classroom names and then ask all of the ‘purple
penguins’ to meet on the rug.4
Dr. Joel further explained that the training materials had
not been adopted as district policy but were merely offered
to the staff for discussion and consideration.5 He emphasized
that the district strives to ensure that all of its students feel
a sense of belonging, and he expressed pride in the teachers’
and administrators’ willingness and openness to gain a better
understanding of student needs.6
These suggestions are easy to implement and make sense
for those times when students need to be divided into a more
manageable group that is not based on either sex or gender.
The challenge occurs when a group has traditionally been
separated based on sex for privacy reasons.
BUT WHAT ABOUT THE RESTROOMS?
To address key concerns, policies on gender neutrality must
reach beyond the use of gender inclusive pronouns. They may
affect, for example, a use of space such as the bathroom.
In Kastl v. Maricopa County Community College District, a
transgender faculty member began presenting as a female at
work and using the women’s restroom on the college campus.
See 325 Fed. Appx. 492, 493 (9th Cir. 2009). After receiving
complaints that a man was using the women’s restroom, the
school required the faculty member to use the men’s restroom
until the faculty member was biologically female.7 The school
rejected the faculty member’s female driver’s license as proof
of gender, and terminated the faculty member when the
faculty member refused to use the men’s restroom.8
The Ninth Circuit found that the faculty member stated
a prima facie case for gender discrimination under Title VII
of the Civil Rights Act of 1964, which prohibits employment
discrimination based on race, color, religion, sex and national
origin. However, the school offered sufficient evidence that it
banned the faculty member from using the women’s restroom
for safety reasons. 325 Fed. Appx. 492, 493 (9th Cir. 2009).
Because the faculty member did not put forth sufficient evidence
that the school’s termination was based on gender, the
faculty member’s case was unsuccessful. Id.
On the other hand, California, for example, more recently
enacted a law that gives transgender students the right to use the
bathroom of their gender identity.9 Compare that to North Carolina’s
legislation found in HB2, which requires all people to use the
bathroom that corresponds to the sex on their birth certificate.
At the time of writing, the most recent and applicable case
law is G.G. v. Gloucester County School Board out of Virginia, in
which the Fourth Circuit held 2 – 1 that “[w]hen a school elects
to separate or treat students differently on the basis of sex…
a school generally must treat transgender students consistent
with their gender identity.”10 The school voted to require
students to use restrooms based on their biological sex, citing
a Department of Education regulation found at 34 C.F.R. §
106.33, which permits schools to provide “separate toilet, locker
room, and shower facilities on the basis of sex.”11 The court
found the language to be ambiguous: “Although the regulation
may refer unambiguously to males and females, it is silent as
to how a school should determine whether a transgender individual
is a male or female for the purpose of access to sex-segregated
restrooms.”12 The court explained that the district court
should have interpreted the cited regulation based on a 2015
opinion letter by the Office for Civil Rights which stated that
“a school…must treat transgender students consistent with
their gender identity”…”[w]hen [it] elects to separate or treat
students different[ly] on the basis of sex.”13 The court vacated
the denial of a preliminary injunction the student sought and
remanded the case to the district court for consideration under
the evidentiary standards articulated by the Fourth Circuit.14
Similar situations involving transgender and gender
nonconforming students and bathroom use continue to arise
in schools, and schools should be aware of the potential policy
implications involved in resolving such situations, regardless
of the manner in which the school responds. These issues may
need to be addressed as facilities are constructed and refurbished,
including the use of single-user facilities, separate
stalls, and other privacy considerations.
GENDER NEUTRALITY IN YOUR SCHOOL
Approaching gender neutrality and inclusiveness with
sensitivity, candor, and full disclosure will help guide schools
as they navigate this controversial issue. A recent CNN article
proposed the implementation of six steps that would create a
gender inclusive environment in schools:
- Don’t separate children by gender
- Start the day with inclusive language
and stick with it
- Feature diversity in books, posters
and other workbooks
- Create a professional development
plan to help educators
- Have strong policies to support
transgender students
- Engage the entire school community15
“Experts say educators need to develop a shared understanding
of gender identity and language to be able to communicate
with students and parents.
[T]hey need to know what to look for, and they need to believe
that they have the support of the school.”16 In school, the focus
should be educational instruction. If students are distracted
by gender specific language that isolates them, this hinders a
school’s goal. Simple changes that create a more inclusive environment
may help students focus on educational pursuits.
FINAL WORD
A district’s position on gender neutrality — whether to address
or ignore — may spark debate from parents, politicians, the
media, and the community. School administrators should keep
abreast of developments in policy discussions and court decisions
regarding transgender and gender nonconforming students, in
order to continue their best efforts to serve all students. Schools
also may wish to seek additional training and source materials
before announcing the adoption of policies that will affect all students,
not just transgender and gender nonconforming students,
and school communities. Changes or updates to policies should
be made after informed discussion. School administrators should always ask their legal counsel to review policy changes to confirm
adherence to the myriad of rapidly evolving school laws.
REFERENCES
1 Emanuella Grinberg, 6 Ways to Embrace Gender Differences at School,
CNN, (Jan. 3, 2015 at 3:53 PM ET), www.cnn.com
2 Joe Dejka, Lincoln Schools Chief: District Not Replacing Terms ‘Boys, Girls’
with Gender-Neutral Ones, OMAHA, (Oct. 9, 2014 at 6:16 PM), www.omaha.com
3 Katherine Timpf, School Told to Call Kids ‘Purple Penguins’ Because ‘Boys
and Girls’ is not Inclusive to Transgender, NATIONAL REVIEW, (Oct. 8,
2014 at 1:50 PM), www.nationalreview.com
4 Id. (internal quotations omitted)
5 Joe Dejka, Lincoln Schools Chief: District Not Replacing Terms ‘Boys, Girls’
with Gender-Neutral Ones
6 Id
7 Id
8 Kastl v. Maricopa County Cmty. College Dist., 2004 U.S. Dist. LEXIS 29825,
at *4 (D. Ariz. 2004)
9 Chris Kenning, Ky. Bill Targets Transgender School-Bathroom Use, USA
TODAY, (Jan. 19, 2015 at 8:48 PM) www.usatoday.com
10 2016 U.S. App. LEXIS 7026 (4th Cir. 2016)
11 See id., at *10-11
12 Id., at *22
13 Id., at *7 (internal quotations omitted)
14 Id., at *37
15 Emanuella Grinberg, 6 Ways to Embrace Gender Differences at School
16 Id
This article originally appeared in the issue of .