Michael Porter is a partner with Miller Nash Graham & Dunn LLP, with offices in Oregon and Washington. You may contact him at Mike.Porter@MillerNash.com.

While some higher ed administrators have a firm grasp on the legal aspects of providing adequate support and access to transgender students, staff and faculty members, many other administrators may be at a loss, leaving their institutions exposed to legal risk.

Historically, many transgender individuals have hidden the fact that they’re transgender. Recent legal developments related to transgender students and employees, as well as publicity surrounding the gender identity of public figures such as Caitlyn Jenner, have raised the profile of transgender issues and the application of laws prohibiting discrimination and ensuring equal access.

The common thread that runs through the legal issues is that when educational personnel make assumptions about transgender individuals, the assumptions create a risk that educational institutions will inadvertently create barriers for transgender students’ access to parts of the educational programs and activities. This can result in potential legal liability.

Consider, don’t over-rely on recent ruling

In a recent opinion out of the Western District of Pennsylvania, Johnston v. University of Pittsburgh, No. 3:13-213, 2015 WL 1497753 (March 31, 2015), the court addressed a student’s claim of transgender discrimination under two legal theories: the Equal Protection Clause of the U.S. Constitution and Title IX of the Education Amendments of 1972 (“Title IX”). In Johnston, a student identifying as male who was born female had used the men’s locker room but was eventually excluded because he couldn’t register as a male student without a court order.

The student was ultimately expelled for exhibiting disorderly, lewd or indecent behavior, and failing to comply with directions of a university official because he had continued to use the men’s locker room after being directed not to. The court engaged in a thorough discussion of established law concerning the Equal Protection Clause as well as statutes that prohibit discrimination based on sex, such as Title IX and the employment statute, Title VII of the Civil Rights Act of 1964. The court dismissed the claims and chose to not exercise jurisdiction over state law claims. The plaintiff has filed a notice of appeal. The court relied in part on the fact that the student had not updated school records to reflect his gender as male and he had not alleged he had undergone sex reassignment surgery, which, in the court’s view, indicated that the institution was not discriminating on the basis of sex.

The case was reported in some media outlets, and a cursory evaluation might suggest that institutions will not have legal exposure to claims of transgender discrimination. But that assumption can be dangerous.

Take into account OCR, state law, contrary opinions

The Office of Civil Rights states plainly in its April 29, 2014, Questions and Answers on Title IX and Sexual Violence (www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf) that “Title IX protects all students” and that transgender students can experience discrimination based on sex. While OCR doesn’t expressly indicate in its Q&A that discrimination is based on an individual because he or she is transgender, in a resolution agreement with the Arcadia Unified School District, OCR required the school district to treat a biologically female student as a male student for all purposes.

Many state and local laws prevent discrimination based on gender identity. And state courts and administrative agencies construing state law have interpreted state law to prohibit discrimination based on gender identity — for example, Doe v. Reg’l Sch. Unit 26, 86 A.3d 600 (Me. 2014), and Colorado Division of Student Rights, Department of Regulatory Agencies, Division of Civil Rights, Charge No. P20130034X (June 17, 2013).

With respect to employment, the Equal Employment Opportunity Commission has interpreted Title VII of the Civil Rights Act of 1964 to prohibit transgender discrimination. And although some courts have rejected arguments that Title VII protects an individual because he or she is transgender, other courts have permitted employment claims based on discrimination arising from an individual’s nonconformance with an employer’s expectations concerning male or female characteristics.

Thoughtfully evaluate transgender issues on campus

Disputes that arise from discrimination claims filed by transgender students often arise out of assumptions made by an institution’s personnel.

For example, staff might assume that a transgender student wants privacy and attempt to drive the student to a “private” bathroom or locker room.

Sometimes an assumption is made that other students will feel offended, embarrassed or uncomfortable when a transgender student seeks to be treated as he or she identifies. But further investigation might reveal either that the other students aren’t concerned or that the concerns arose from inaccurate information or stereotyping. If other students do indicate they’re uncomfortable or feel subjected to a discriminatory environment, administrators should work closely with discrimination experts such as legal counsel to evaluate the jurisdiction’s specific laws and carefully assess the rights of all students.

Administrative agencies and courts in these cases frequently find that an in-depth investigation of the situation would have revealed that stereotypes and inaccurate assumptions were driving decisions, and sometimes equate such assumptions to discrimination.

To reduce the likelihood of discrimination claims by transgender students, institutions should take the following steps:

  • Work to ensure strong communication with transgender students.
  • Be aware of and explore resources from advocacy groups that can provide guidance both in general and when facing particular issues.
  • Be aware of state and local laws concerning discrimination based on gender identity.
  • Educate the campus community as a whole on its obligation to ensure equal access for transgender students.

Source: Campus Legal Advisor