Addressing The Restroom Question For All Public School Students

June 14, 2016

The recent question surrounding restroom use for students has caused concern among many students, parents and community members.  The law, as it currently stands, requires schools to allow students to use the restroom consistent with their gender identity, even when that identity differs from their biological sex.  We recognize that this development presents a number of hurdles for schools, in both practical and social contexts.  In our view, the best approach strikes a balance between three fundamental interests: privacy, safety, and equity.

Privacy, or the security in one’s person, remains the foremost concern articulated by stakeholders of public schools. Concerns regarding privacy in this context are borne of uneasiness or uncertainty regarding the intentions of others.  For example, a female student may fear a violation of her privacy when a transgender female student (biologically male) shares facilities which were previously available only to biological females.  Though stakeholders’ fears regarding privacy cannot be prevented, school districts can continue to take practical steps to maintain or improve the quality of student privacy while fully complying with the law.  Nevertheless, genuine issues of safety may arise when privacy is a school district’s sole consideration.

Safety concerns present a risk of physical or emotional harm for transgender students, in particular.  Studies have shown that transgender individuals are at substantially greater risk of depression and suicide, as well as bullying or harassment.  From a school district’s perspective, policies and practices focused entirely upon privacy may have the injurious effect of creating a culture of ostracism or institutional indifference for transgender students.

Finally, the interest that is most dynamic and compelling in today’s climate is that of equity.  Equitable treatment dictates that students have access to programs and facilities without regard for their gender identity or transgender status.  In the context of bathrooms, equity demands that students be allowed to use the facilities that correspond with their gender identity.  Of course, equity must be tethered to privacy and safety.  Thus, in the interest of privacy, districts may wish to consider offering students the use of a private restroom that may be used by anyone without regard to gender identity.  And, in the interest of safety, districts must continue to provide supervision of students, as they have in the past.

These interests are, in a sense, in tension with each other; however, a proper balance may be struck.  Nevertheless, it is the public school’s responsibility to recognize the necessity of each and implement them as completely as possible.

Recognizing the need for practical guidance on these issues, we offer the following recommendations based on recent joint guidance from the United States Departments of Education and Justice:

• Use pronouns and names correlating with the student’s gender identity;
• A student’s educational records should reflect the student’s gender identity and new name;
• To the extent that a student’s transgender status is a part of his or her educational records, such information should be protected as confidential;
• Only disclose information related to a student’s transgender status to District personnel who have a legitimate educational interest in that information;
• Allow transgender students to participate in single-sex classes or extra-curricular activities in a manner consistent with their gender identity;
• Provide a safe and non-discriminatory environment by treating transgender students consistently with their gender identity; and,
• Take prompt and effective steps to end harassment based on a student’s gender identity in order to prevent a hostile environment for transgender students.