East Lansing Schools’ Support of Transgender Students Ahead of Many U.S. Districts, Attorney Says

Tuesday, May 17, 2016, 8:48 am
Karessa Wheeler

Attorney Lisa Swem briefed the School Board on school policies regarding LGBTQ students.

East Lansing schools are right in line with the newest federal guidelines on treatment of transgender students in school, the ELPS Board heard last night.

“You as elected officials have weighed in and made it clear that no discrimination will occur in categories of gender identification or sexual orientation,” attorney Lisa Swem with Thrun Law Firm told the Board.

Swem had been asked by the Board trustees to update them on the status of Title IX in regards to Lesbian, Bisexual, Gay, Transgender and Questioning students.

She reassured the Board that the policies that direct the treatment of LBGTQ students are “consistent with the U.S. Department of Education’s view of Title IX and also consistent with the draft guidance before the State of Michigan Board of Education.”

Title IX of the Education Amendments of 1972 states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Federal departments have said this extends to transgender students as well.

However, East Lansing’s policies that specifically protect gender identification and expression as well as sexual orientation would currently be illegal under North Carolina’s House Bill 2 which prohibits transgender people to use bathrooms of the gender with which they identify.

“This law specifically forbids local districts from expanding protections beyond the state law,” Swem said.

In addition to the federal law, Michigan’s Elliott-Larsen Civil Rights Act prohibits discrimination because of religion, race, color, national origin or sex.

But outside East Lansing is a different story. There are currently lawsuits in Illinois over transgender student rights, and four pending lawsuits in North Carolina over House Bill 2.

While the presentation was requested several weeks ago, the issue is especially timely following the move Friday by the U.S. Department of Education and the U.S. Department of Justice to issue a “Dear Colleague” letter in support of transgender students.

"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," Attorney General Loretta Lynch said. "This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies."

Meanwhile in Michigan, hundreds of people spoke during the State Board of Education’s hearings on its draft guidelines on the treatment of transgender students last week.

Swem’s law firm participated in the preparation of the “Safe and Supportive Learning Environments for LGBTQ Students” (the State Board of Education's draft guidelines) that were the subject of intense hearings last week. Swem does not expect the State Board to take action on the guidelines until this summer at the earliest.

State guidelines are not binding on any school in the state but offer districts “useful strategies for tricky situations,” Swem said. East Lansing’s Board unanimously supported the state guidelines.

Those on both sides of the issue are arguing for different aspects of student safety. One of the concerns is about privacy and the rights of non-transgendered students in bathrooms, locker rooms and showers, Swem said. However, that perspective flies in the face of histories of civil rights and Title IX law.

“You can’t justify a policy that singles out a particular class of students just because others are uncomfortable with something,” Swem said. “Someone’s discomfort does not trump someone else’s civil rights.”

Other supporters of the “bathroom bills” allege that the federal government is violating individuals’ rights to practice their religion. The Alliance Defending Freedom has been active in Michigan school districts claiming that allowing transgender students to use facilities would “expose itself to tort liability.”

On the side of transgender rights supporters, the issue is not just safety of the individual students but also their mental health.

“There are transgendered students in our schools now who are suffering and need support and help,” said Eliza Byrd, Executive Director of Gay, Lesbian & Straight Education Network.

As for East Lansing schools, Swem advises school administrators and staff to continue to deal with each LGBTQ situation regarding bathroom or locker room use on a case-by-case basis. She specifically suggested school personnel to discuss preferences with each student and consider additional privacy measures for changing and showering in locker rooms.

“If we are painting all LGBTQ students with a broad brush we are making a mistake. Each one is an individual,” Swem said. “Remember that this child, this student, is a student in our schools and it is our job to provide a safe environment that is conducive to learning. It’s really that simple.”