The Elko County School District Board of Trustees recently adopted a policy that discriminates against and stigmatizes transgender and gender diverse students.
ECSD’s new “Gender Non-Conforming Students” policy requires all students to use the school facilities, including restrooms, locker-rooms and showers, based solely on a student’s sex assigned at birth. This policy completely disregards the mountain of medical and social science data regarding gender diverse students and violates recently enacted Nevada Department of Education Regulations, Nevada Revised Statutes, Title IX, and the Equal Protection Clause of the U.S. Constitution. Transgender and gender diverse students should be able to access the restroom that matches their gender identity.
This isn’t the first time Elko County has refused to treat its trans and gender nonconforming students with the care they deserve. In 2015, the school district refused to allow a transgender student to use the appropriate facilities that matched their gender identity — it’s one of the reasons we fought so hard for a statewide regulation that protects trans youth at school.
We opposed the adoption of ECSD’s new policy, and made it clear in a letter to the Board of Trustees that requiring transgender and gender diverse students to use facilities that are not consistent with the gender they live every day, or requiring them to use separate, single-user restrooms, is not only profoundly harmful, but also violates state and federal law. Those who identify with their biological sex do not face such demeaning choices.
The Journal of Adolescent Health concluded transgender youth are at heightened risk of depression, anxiety, and suicide. Studies by the CDC and the American Foundation for Suicide Prevention have found these risks are exacerbated by harassment and rejection in school. Although transgender youth face a far greater risk of harassment and discrimination at school, that risk is significantly reduced when students are allowed to integrate into school activities and facilities. ECSD failed to acknowledge these risks when it passed this illegal policy.
The ECSD policy falls short of state regulations and anti-discrimination laws in several significant ways:
First, it violates the newly enacted Nevada Department of Education (DOE) Regulations by (1) failing to recognize that the rights and needs of gender diverse students must be addressed on an individualized basis; and (2) failing to provide for any training concerning the rights and needs of persons with diverse gender identities or expressions.
Worse, the policy violates Nevada’s public accommodation law, NRS 651.050, and by extension the DOE’s explicit requirement that it not do so. Nevada’s public accommodations law — which includes schools — requires that all people be entitled to “the full and equal enjoyment of the facilities, privileges, advantages and accommodations of any place of public accommodation, without discrimination or segregation on the ground of . . . sex, gender identity or expression.” Yet the ECSD policy discriminates on the basis of sex, gender identity and expression, by limiting student access to school restrooms, locker-rooms, and showers based solely on a student’s sex assigned at birth. Many courts and administrative agencies have found that denying transgender people equal access to restrooms violates public accommodation laws forbidding discrimination on the basis of sex or gender identity
Second, ECSD’s adoption of this policy goes against Nevada’s commitment to creating a safe and respectful learning environment for all students. The District is required by state law to work towards creating an inclusive environment where students can focus on learning rather than which bathroom they are permitted to use. By adopting this policy, the ECSD has rejected this commitment to its students.
Third, the policy’s denial of equal access to facilities based on gender identity violates Title IX of the Education Amendments of 1972, and the Equal Protection Clause of the Constitution, both of which prohibit government discrimination “on the basis of sex.” As a Federal Appeals Court explained: “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”
Elko County would be wise to abide by state law and must grant equal access to school facilities based on students’ gender identities. Otherwise we might just end up in court.
Photo: Famartin / Wikimedia Commons