For several years there has been a sharp increase in the number of school districts and state departments of education that have instituted policies and practices that clearly define the rights of transgender and gender expansive students. Below are excerpts from just a few of these policies pertaining to bathroom use.
Laws and policies designed to protect transgender students generally address multiple areas of concern, including non-discrimination, student records, sex-segregated facilities and practices, pronoun use, athletics, and dress codes. The excerpts below represent language specific to bathroom use and should be viewed as just one component of comprehensive policies to ensure fair and equitable treatment of transgender students.
The State Department of Education
Document: Civil Rights Protections & Supports for Transgender Students: Frequently Asked Questions
Q: What restrooms should students use?
A: Most schools divide restrooms by sex. Under federal and state laws, CSDE policies and procedures, and Executive Order No. 56, schools are required to provide access to the restroom that corresponds to a student’s gender identity at school, even when this differs from their sex assigned at birth. For example, a student whose sex assigned at birth is female but who identifies as male has a right under the law to use the restroom designated for male students if the student wishes, and it would be a violation of law to require this student to use the restroom designated for female students or an individual restroom. In communicating with students, families and staff about this requirement, schools may find it helpful to note that a private restroom option will be made available to any student.
Iowa Department of Education
Document: Equality for transgender students (February 2015 School Leader Update)
All students should have access to locker room, bathroom, and shower facilities that are safe, comfortable, and convenient. Absent a concern for safety, schools should permit a student to use the restrooms or locker rooms for which they identify with. If private or separate facilities are requested by any transgendered or non-transgendered student, the student should be provided with those facilities. Remember, a student cannot be forced to use a restroom for which they do not identify.
State Department of Elementary and Secondary Education
Document: Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment: Nondiscrimination on the Basis of Gender Identity
All students are entitled to have access to restrooms, locker rooms and changing facilities that are sanitary, safe, and adequate, so they can comfortably and fully engage in their school program and activities. In meeting with the transgender student (and parent) to discuss the issues set forth in this memorandum, it is essential that the principal and student address the student’s access to the restrooms, locker room and changing facility. Each situation needs to be reviewed and addressed based on the particular circumstances of the student and the school facilities. In all cases, the principal should be clear with the student (and parent) that the student may access the restroom, locker room, and changing facility that corresponds to the student’s gender identity. While some transgender students will want that arrangement, others will not be comfortable with it. Transgender students who are uncomfortable using a sex-segregated restroom should be provided with a safe and adequate alternative, such as a single “unisex” restroom or the nurse’s restroom...Some students may feel uncomfortable with a transgender student using the same sex- segregated restroom, locker room or changing facility. This discomfort is not a reason to deny access to the transgender student. School administrators and counseling staff should work with students to address the discomfort and to foster understanding of gender identity, to create a school culture that respects and values all students.
The Department strongly recommends that districts include an appropriate number of gender- neutral restrooms commensurate with the size of the school, and at least one gender-neutral changing facility, into the design of new schools and school renovations.
Oregon Department of Education
Document: Guidance to School Districts: Creating a Safe and Supportive School Environment for Transgender Students
School districts, as well as students and their families, may find the use of restrooms, locker rooms, changing facilities, and participation in extracurricular activities to be among the more important issues to consider. OCR has recognized that school districts “in preventing and redressing discrimination, ... must formulate, interpret and apply their rules in a manner that respects the legal rights of students, including constitutional rights relating to privacy.” In 2015, the United States Departments of Education and Justice stated that:
Under Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that matches his (her) gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.
Based on a recent OCR finding against an Illinois school district, it is recommended that alternative accommodations, such as a single “unisex” bathroom or private changing space, should be made available to students who request them, but should not be forced upon students, or presented as the only option.
Office of the Superintendent of Public Instruction
Document: Students Rights: Gender Expression and Gender Identity
Public schools must allow students to use the restroom that corresponds to their gender identity. Any student—transgender or not—who requests greater privacy for any reason should be given access to an alternative restroom, such as a staff restroom or health office restroom. However, school staff cannot require a student to use an alternative restroom because of their transgender or gender non-conforming status.
Los Angeles Unified School District - California
Document: Transgender Students -Ensuring Equity and Nondiscrimination
1. Schools may maintain separate restroom facilities for male and female students. Students shall have access to restrooms that correspond to their gender identity. Students who identify as nonbinary should be granted access to the facility which they find best aligns with their gender identity.
2. If a student desires increased privacy, regardless of the reason, the administrator shall make every effort to provide the student with reasonable access to an alternative restroom such as a single-stall or all-gender restroom. The use of a restroom should be determined by the student’s choice; no student shall be compelled to use an alternative restroom. For safety reasons, students should be given access to a restroom that allows reasonable access for appropriate supervision by staff. Regardless, all students are expected to exemplify appropriate behavior in restrooms.
Boulder Valley School District – Colorado
Document: Guidelines Regarding the Support of Students who are Transgender and Gender Non Conforming
Students shall have access to the restroom that corresponds to their gender identity consistently asserted at school. Any student who is transgender and who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to a single stall restroom, but no student shall be required to use such a restroom.
District of Columbia Public Schools
Document: Transgender and Gender- Nonconforming Policy Guidance
Having safe access to restroom facilities is important to the health and wellbeing of all people, including those who identify as transgender and gender-nonconforming. Students are allowed to use the same bathrooms as their peers, unless they request alternate accommodations. This means that transgender and gender-nonconforming students are entitled to use the bathroom that matches their gender identity. Any student, transgender or otherwise, who has a need or desire for increased privacy, regardless of underlying reasons, also has the right to access a single-user restroom, such as a staff bathroom or the bathroom in the nurse’s office. However, the single-user bathroom may not be given as the only option for transgender or gender-nonconforming students. [emphases in the original]
Atherton High School, Jefferson School District, Louisville, Kentucky
Document: School-based Decision Making Council Policy
Atherton shall not discriminate on the use of school space as the basis of gender identity nor gender expression. The school shall accept the gender identity that each student asserts. There is no medical or mental health diagnosis or treatment threshold that students must meet in order to have their gender identity recognized and respected. The assertion may be evidenced by an expressed desire to be consistently recognized by their gender identity. Students ready to socially transition may initiate a process with the school administration to change their name, pronoun, attire, and access to preferred activities and facilities. Each student has a unique process for transitioning. The school shall customize support to optimize each student’s integration.
On April 29, 2014, the United States Department of Education Office of Civil Rights released a “significant guidance document” regarding schools “complying with their legal obligations”, under Title IX of the Education Amendments of 1972, stating “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” Accordingly, Atherton will ensure protection, respectful treatment, and equal access to educational programs and activities for transgender students. The implementation of this policy will reflect the reality that transgender and gender nonconforming students are enrolled in schools.
- Atherton will maintain separate restroom facilities for male and female students.
- Students shall have access to restrooms that correspond to their gender identity asserted at school.
- If a student desires increased privacy, regardless of the underlying reason, the administrator shall make every effort to provide the student with reasonable access to an alternative restroom such as a single-stall restroom.
- The use of a restroom should be determined by the student’s choice in accordance with their gender identity; no student shall be compelled to use an alternative restroom.
Bellevue Public Schools - Nebraska
Document: Administrative Regulation on Transgender Students
Students shall have access to a restroom that corresponds to their gender identity. A student shall not be required to use a restroom that is incongruent with the student’s gender identity. Where available, a single stall bathroom may be used by any student who desires increased privacy, regardless of the reason. The use of a single stall bathroom shall be a matter of choice for a student, and no student shall be compelled to use such a bathroom. Use of restrooms by transgender or gender nonconforming students shall be determined on a case- by-case basis depending on specific circumstances.
Candia School District - New Hampshire
Document: Candia School District Transgender and Gender Nonconforming
Students shall have access to the restroom that corresponds to their gender identity consistently asserted at school. Any student who has a need or desire for increased privacy, regardless of underlying reason, should be provided access to a single stall restroom, but no student shall be required to use such a restroom.
Madison Metropolitan School District - Wisconsin
Document: Guidance & Policies to Support Transgender, Non-Binary, and Gender-Expansive Students: School Facilities
Restrooms: Having safe and respectful access to restroom facilities is important to the health and wellbeing of those who identify as transgender, non-binary, or gender-expansive. Students shall have access to the restroom that corresponds to their gender identity consistently asserted at school.
All MMSD schools have at least one single stall All Gender Restroom in their building that all students have the right to use. No student shall be required to use such a restroom. The All Gender Restroom may not be given as the only option for students who identify as transgender, non-binary, or gender-expansive.
It can be emotionally harmful for transgender, non-binary, and gender-expansive youth to be questioned or interrogated when using the restroom. We shall assume that our students are using the restroom that is consistent with their gender identity. Therefore, staff shall not confront students about their gender identity upon entry to the restroom. Only if there are behavioral incidents in the restroom should administration resort to the implementation of the Behavior Education Plan.