Brian Callaway, left, and Justin Weber, right, of Pepper Hamilton.

Editor's note: This is the final article in a three-part series.

Courts have yet to definitively settle questions surrounding transgender rights in the educational context. Schools can help mitigate some of that uncertainty, however, by proactively developing policies to address the rights of transgender students and others. Part I of this article gave an overview of this area of the law, primarily by discussing Title IX of the Education Amendments Act of 1972. Part II discussed other relevant federal and state laws.  This article outlines what schools should consider as they make, amend, or review policies and best practices relevant to transgender students.

What Does a School Need to Consider?

Policies matter. Each school is unique and needs to develop—and update—policies that further the culture and mission of the school. Policies also provide certainty to staff and establish expectations for students and their families. When a school has not developed intentional policies, it develops informal ones by default. As schools address or update policies, they will need to consider a variety of questions, including the following:

• Does the school treat students according to gender identity if it is different than the student's biological sex?

This is the core issue. It will guide the development of all policies from locker room access to dress codes.

If the school treats students consistent with their gender identity when it conflicts with biological sex, does the school make accommodations for students who have privacy concerns about sharing facilities with a transgender student? Additionally, if the school is a residential school, there may be other interactions among students that create heightened privacy concerns and require additional privacy options. Moreover, what, if anything, does a student need to do to establish his or her gender identity?

If the school does not treat students consistent with their gender identity, and if the school falls within the scope of Title IX, the school may violate Title IX. See Doe v. Boyertown Area School District, No. 17-3113 (June 18, 2018). Remedies available to individual plaintiffs in Title IX cases include compensatory damages, injunctive relief and attorney fees, see, e.g., Dawn L. v. Greater Johnstown School District, 586 F. Supp. 2d 332, 383 (W.D. Pa. 2008). If the school is not subject to Title IX, are there other federal statutes, or state or municipal laws, that prohibit discrimination based on “sex” and that could be interpreted as requiring the recognition of transgender rights?

• When can a student change his or her records?

Schools may receive requests from students or alumni to change the gender identification on a student's educational records. For schools that receive funds under programs administered by the U.S. Department of Education, the Federal Educational Rights and Privacy Act (FERPA) provides the framework for the disclosure of and correction to educational records.

Generally, FERPA prohibits the disclosure of student records unless authorized by a parent or student over the age of 18. FERPA also provides a right to seek to amend school records when those records are “inaccurate, misleading or in violation of a student's right to privacy.” A former student who has transitioned to a new gender identity may wish to change the gender identity or the name listed on his or her educational records. This request could originate from a desire for future employers to not know about the transition, or simply to have the gender reference reflect the former student's current gender identity.

Several issues arise when confronted with a request to change gender identity in school records. First, what are the records intended to reflect, and are they accurate? Do the educational records reflect the student's gender identity at the time the student was at the institution or continuing information about the student?

Second, if educational records are accurate, may they still violate a right to privacy if they would, by implication, convey that the student transitioned to a different gender identity?

FERPA does not provide a private cause of action. As a result, an institution's liability is limited to a potential loss of federal funding, and not damages. For schools where FERPA does not apply, following FERPA's interpretation can inform best practices.

• What about housing or overnight accommodations on field trips?

If the school recognizes gender identity, how does it respect the privacy of nontransgender students? With respect to housing or roommates, could a school recognize gender and biological sex differences but still segregate students based on biological sex for certain activities? And, as discussed above, the FHA may provide additional requirements even for those schools that are not traditionally subject to Title IX. Although it is beyond the scope of this article, residential schools will also need to determine how to address employment issues related to dorm advisers and other residential positions.

• What about athletics?

The issue of athletic participation is usually governed by an association or other group's rules. The Pennsylvania Interscholastic Athletic Association, Inc. (PIAA) has a bylaw regarding “mixed gender participation” in interscholastic athletics. Article XVI, Section 4 of the PIAA's bylaws classifies sports “by gender” and generally limits mixed-gender participation within a sport.

The bylaws, at least indirectly, address the rights of transgender students, noting that when “a student's gender is questioned or uncertain,” PIAA will accept the decision of a school's principal “as to the student's gender,” see 2017-2018 PIAA Constitution and By-Laws.

A potential way to address questions of gender is to treat individuals uniformly based on the gender marker listed on the student's birth certificate. Initially, this may have been a way to treat students solely according to biological sex. Now, however, it may be a viable approach that promotes uniformity and puts control into the hands of the student and his or her family. In states like Pennsylvania, there is a simple procedure for changing the gender marker on a birth certificate. It may not satisfy everyone, but it promotes uniformity, uses state issued documents, and avoids administrators from needing to make case-by-case determinations regarding a student's gender.

Conclusion

Given the increased attention surrounding transgender rights, the question is not if, but when, a school will need to navigate these issues. When developing policies, schools should:

• Be proactive. Develop clear policies and apply them consistently.
• Educate staff and the school community regarding those policies and transgender issues.
• Make the policies part of the student handbook. This creates and manages expectations, and the handbook may form a contract between the school and the student.
• Keep abreast of legislation and legal developments. What is current today may not be tomorrow.

Schools that act proactively and develop thoughtful policies, instead of reactive responses, will be able to act confidently when issues regarding transgender students arise.

Justin G. Weber is a partner with Pepper Hamilton and attorney-in-charge of the Harrisburg office. He is a member of the firm's trial and dispute resolution practice, a seasoned and trial-ready team of advocates who help clients analyze and solve their most emergent and complex problems through negotiation, arbitration and litigation.

Brian H. Callaway is an associate with the firm, resident in the Philadelphia office. Callaway concentrates his practice on commercial litigation, including media law, insurance bad faith litigation and complex contract disputes.