OSPI Nondiscrimination Guidelines for Trans* Students

Last week, JELS published a blawg about OSPI that expressed disapproval of their actions, both in the process they sought to modify the nondiscrimination WACs and in the overall result in the WACs. This week, we give a little praise. In 2012 OSPI created, “Prohibiting Discrimination in Public Schools: Guidelines for school districts to implement Chapters 28A.640 and 28A.642 and Chapter 392-190 WAC.” While this guide is not perfect, there was one section in the guide which I feel was done particularly well: Gender Identity and Gender Expression. In fact, they are done so well that I’m providing them below.

GENDER IDENTITY AND GENDER EXPRESSION
59. What terms are commonly used to describe gender identity or gender expression?
Individuals use a number of words to describe their gendered experiences. Some people may refer to themselves as trans, transsexual, transgender, male-to-female (MTF), female-to-male (FTM), two-spirit, and a variety of other terms. Terminology can differ based on region, language, race, ethnicity, age, culture, and many other factors. Some common terms are defined below.
 Gender identity is a person’s deeply felt internal sense of being male or female, regardless of their sex assigned at birth.
 Gender expression is the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice, or mannerisms.
 Transgender is a general term used to describe a person whose gender identity or expression is different from that traditionally associated with the person’s sex assigned at birth.
 Transitioning is the process in which a person changes their gender expression to better reflect their gender identity.
 Gender nonconforming is a term for people whose gender expression differs from stereotypical expectations about how they should look or act based on the sex they were assigned at birth. This includes people who identify outside traditional gender categories or identify as both genders.

60. Should transgender and gender nonconforming students have the right to express their gender identity in school?
Yes. Washington state law prohibits discrimination in public schools based on gender expression and identity (RCW 28A.642.010). Students must be permitted to dress according to the gender in which they consistently identify and should be addressed and treated using the name and pronouns of their choice (i.e., “he” and “him” or “she” and “her”). School districts are encouraged to adopt gender-neutral dress codes that do not restrict a student’s clothing choices on the basis of gender. Dress codes should be based on educationally relevant considerations, apply consistently to all students, include consistent discipline for violations, and make reasonable accommodations when the situation requires an exception.
61. How should school districts address a student’s name and sex on official records?
School districts maintain permanent student records that include a student’s legal name and legal gender. To the extent that the school district is not legally required to use a student’s legal name and gender on school records or documents, the district should use the name and gender by which the student identifies. School IDs, for example, are not legal documents and should use the student’s preferred name. The school district should change a student’s official record to reflect a change in the student’s legal name or gender upon receipt of documentation that such change has been made pursuant to a court order or through amendment of state- or federally-issued identification. In situations where school staff or administrators are required by law to use or report a student’s legal name or gender, such as for standardized testing, school staff should adopt practices to avoid the inadvertent disclosure of such confidential information.
62. Should schools inform staff, students, or parents about a student’s transgender status?
Information about a student’s transgender status, legal name, or gender assigned at birth may constitute confidential medical or education information. Disclosing this information to other students, their parents, or other third parties may violate privacy laws, such as the federal Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99). School staff should not disclose information that may reveal a student’s transgender status to others, including parents and other school staff, unless legally required to do so or unless the student has authorized such disclosure.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

65. How should school districts address physical education and athletic participation by transgender students?
School districts should allow students the opportunity to participate in physical education and athletic activities in a manner that is consistent with their gender identity. For interscholastic athletics, should any questions arise as to whether a student’s request to participate in sex-segregated activity consist with his or her gender identity is bona fide, a student may seek review of his or her eligibility for participation by working through the Gender Identity procedures set forth by the Washington Interscholastic Athletic Association (WIAA) available at http://www.wiaa.com/subcontent.aspx?SecID=350.

66. Should school districts allow a transgender student to use the locker room of their choice? 
The use of locker rooms by transgender students should be assessed on a case-by-case basis, with the goals of maximizing the student’s social integration and equal opportunity to participate in physical education classes and sports, ensuring the student’s safety and comfort, and minimizing the stigmatization of the student. In most cases, transgender students should have access to the locker room that corresponds to their gender identity consistently asserted at school. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative changing area, such as the use of a private area (e.g., a nearby restroom stall with a door), or a separate changing schedule. Any alternative arrangement should be provided in a way that protects the student’s ability to keep his or her transgender status private. No student, however, should be required to use a locker room that conflicts with his or her gender identity.