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  •  School Administrators are Urged to Seek Legal Advice when Accommodating Transgendered Students and Staff

    School districts have increasingly reported that they are being asked to accommodate transgendered students. The term “transgender is a term for people whose gender identity differs from what is typically associated with the sex they were assigned at birth.”[1] Individuals who are transgendered “often try to bring their bodies more into alignment with their gender identity.”[2] These individuals may or may not choose to alter their bodies surgically; being transgendered does not require the person to undergo a medical procedure.[3]  Transgendered individuals, particularly those who are too young to have surgery, may retain the sex they were assigned at birth while dressing and acting as the sex with which they identify.  Simply put, transgendered persons who were male at birth may dress and act as females and vice versa.  There may also be other individuals who do not identify with either gender.

    Transgendered individuals are often stigmatized. The New Jersey Legislature has recognized that the state has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth.[4]  In this regard, it is important for school administrators to note that transgendered individuals enjoy the same rights and protections against discrimination as other individuals. The New Jersey Law Against Discrimination (hereinafter “LAD”) expressly prohibits discrimination against individuals based on gender identity. It states, in pertinent part, that it is illegal:

    For any …  superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof, or directly or indirectly to publish, circulate, issue, display, post or mail any written or printed communication, notice, or advertisement to the effect that any of the accommodations, advantages, facilities, or privileges of any such place will be refused, withheld from, or denied to any person on account of …. gender identity or expression, affectional or sexual orientation; . . . provided, however, that nothing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, and which shall include but not be limited to any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex, provided individuals shall be admitted based on their gender identity or expression, from refusing, withholding from or denying to any individual of the opposite sex any of the accommodations, advantages, facilities or privileges thereof on the basis of sex . . .[5]

    The statute specifically includes in its definition of public accommodations:

    any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.[6]

    The LAD expressly prohibits discrimination against all “persons” in the protected classes and thus, applies to prohibit discrimination against both students and teachers who may be transgendered individuals.[7] 

    Under this statute, common bathrooms and locker rooms are considered public accommodations.  Thus, a transgendered individual must be permitted to utilize the common bathrooms or locker rooms that are reserved for the gender with which she or he identifies. For example, where a student is born of female gender, but identifies as a male, he must be permitted to utilize the male common bathrooms and locker rooms at school. Similarly, where an employee is born of male gender, but identifies as a female, she must be permitted to utilize the female common bathrooms at school. 

    Districts have reported experiencing a backlash from parents of students who are not transgendered, who are offended at the thought of a transgendered student using the same bathroom as their children.  However, districts are not permitted to prohibit a transgendered student from using the applicable facilities to appease the objecting parties.[8]  Similarly, districts are required to permit a transgendered staff member to use the facilities of the gender with which he or she identifies, even over the objections of other employees.

    While allowing transgendered individuals to use facilities at school and in the workplace currently may present difficult issues and decisions for school districts, it is important that districts understand they are prohibited from discriminating against those individuals.  School administrators are urged to obtain and follow detailed advice from their board attorneys whenever they are presented with issues involving the accommodation of transgendered individuals.

    [1]  GLAAD, Transgender 101,  http://www.glaad.org/transgender/trans101

    [2]   Id. 

    [3]   Id.

    [4]   N.J.S.A. 45:1-54.   See also N.J.S.A. 45:1-55 (The Legislature has also prohibited licensed professionals from engaging in sexual orientation change efforts with persons under the age of 18).

    [5]  N.J.S.A. 10:5-12(f)(1) (emphasis added).

    [6]  N.J.S.A. 10:5-5(l).

    [7]  For additional discussion regarding the LAD in regard to transgendered students and staff, refer to NJASA Administrative Guide, Gay, Lesbian, Bisexual and Transgendered Students and Staff in the School Setting, Vol. 34, No. 5 (May 2004). 

    [8]  While there are few reported cases involving transgendered students in New Jersey, Maine, which has a similar statute, has found that a school district violated the rights of a transgendered girl where it prohibited her from using the communal girls bathroom and required her to use a unisex bathroom.  Doe v. Reg’l School Unit 26, 2014 ME 11, 86 A.3d 600 (Me. 2014).