FAQ – How TN Laws Affect Transgender Students in Public Schools

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In 2021, despite staunch opposition from ACLU-TN and our partners, a wave of discriminatory bills targeting LGBTQ Tennesseans passed the Tennessee General Assembly and were signed into law by Governor Bill Lee. Several of these bills, detailed below, target transgender youth in public schools.

This guide is intended to provide information for students, parents, educators, school staff, administrators and school boards regarding the new laws.*

If you are the parent of a trans or non-binary child who is being excluded from participating in public school sports due to gender identity, or who is being prohibited from using the restroom that matches their gender identity at school, please contact us at: http://bit.ly/gethelpACLUTN.


    Yes. Title IX of the Education Amendments of 1972 (Title IX) is a federal law that prohibits discrimination based on sex in any educational program or activity receiving federal financial assistance. Courts have recognized that Title IX’s prohibition on sex discrimination encompasses protections against discrimination and harassment based on a failure to conform to sex stereotypes and gender identity. For example, courts have ruled that a school cannot restrict a transgender student’s appearance beyond the dress code unless the student’s appearance causes a “substantial disruption” at school, nor can schools force a trans girl to comply with the dress code for boys or vice versa.
    In a recent ACLU case, Virginia student Gavin Grimm sued his school board for excluding him from the restrooms any other boy in his school would use — simply because he is transgender. Represented by the ACLU and ACLU of Virginia, Gavin sued his school board for discriminating against him in violation of the Equal Protection Clause and Title IX. After four years of litigation — including a trip to the Supreme Court and back — the U.S. District Court for the Eastern District of Virginia ruled in favor of Gavin on all of his claims. The U.S. Court of Appeals for the Fourth Circuit affirmed the ruling in favor of Gavin on August 26, 2020, and on June 28, 2021, the U.S. Supreme Court denied the school board’s petition to hear their appeal.

 




    Yes. The Fifth and Fourteenth Amendments guarantee equal protection of the law. Courts have interpreted the equal protection clause to prohibit discrimination on the basis of gender, religion and disability. Additionally, the United States Supreme Court has held that Title VII of the Civil Rights Act of 1964 also prohibits discrimination based on an individual’s sexual orientation and gender identity in addition to “race, color, religion, sex, or national origin.”




    • Transgender students live in urban, suburban, and rural areas across the state and throughout the country. It is estimated that 150,000 children in the U.S. between the ages of 13 and 17 identify as transgender.

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Research shows that transgender children and adolescents thrive when they are supported and treated equally, but persistent discrimination against these students is profoundly harmful. For example, forcing a transgender student to use a restroom separate from all of their peers sends a message to that student and to all of the student’s peers that there is something wrong with them and that they are not entitled to the same dignity as other students.

Transgender students already experience high rates of bullying by peers and adults, and the stress of harassment and discrimination can lead to lower attendance and grades as well as depression, anxiety and suicide. Recent research also shows that students in the South are “most likely to hear anti-LGBTQ remarks, and [more likely to] experience anti-LGBTQ victimization and discrimination than students in other regions. They are also the least likely to have access to LGBTQ-related school supports.” 2

The American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, and many other major medical organizations oppose stigmatization and marginalization of transgender youth and urge support for them, particularly given their higher rates of depression, anxiety, substance use, self-harm and suicidal ideation, as well as the frequent harassment and victimization they face. 3




    In 2021, the governor signed a bill into law that bans transgender student athletes attending public middle and high schools from participating on a sports team that corresponds with their gender identity.
    The governor also signed a bill into law that allows students and their parents to sue school districts that allow transgender students to use a restroom or changing facility that corresponds with their gender identity.




    The new law, Public Chapter 40, requires that schools determine a “student’s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event” by looking only at a “student’s original birth certificate.”




    • Yes, this law is harmful to transgender youth. Trans girls are girls and trans boys are boys. Requiring girls who are trans to compete on boys’ teams, or boys who are trans to compete on girls’ teams, effectively excludes them from participating at all. As one court ruled, “Participating in sports on teams that contradict one’s gender identity ‘is equivalent to gender identity conversion efforts, which every major medical association has found to be dangerous and unethical.'”

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    It’s incredibly harmful – socially, psychologically, and even physically – to not recognize a student athlete’s gender identity. Forcing a student to play on a team with members of the opposite gender is not a lawful accommodation and can be the source of immense harm.




    • Scientific studies have not shown such an advantage. Scientific studies of sports performance overwhelmingly focus on elite athletes, not K-12 students. No large studies have looked specifically at transgender athletes. Study results vary on the impact of hormone levels on performance, and this relationship may differ based on the sport, level of competition, other characteristics of the athlete, and the type of hormones measured. The research does not support the idea of a systematic advantage for trans athletes.

The notion that women and girls who are transgender have a competitive advantage in school sports is based on two false premises. The first is that transgender women and girls are really males. But that is not true. The second is that testosterone gives people a competitive advantage in sports. The science does not support this myth either.5 There is no “threat” to the integrity of women’s sport posed by trans participation, as evidenced by the lack of any dominance by women and girls who are trans.




    The bill text seems to indicate that students need to produce a birth certificate or equivalent record to participate in an “athletic activity or event.” This implies that providing a birth certificate would apply to both being an officially rostered team member and to participating on game days.




    If a student does not have a birth certificate or their birth certificate is not an original – for example, an amended birth certificate – then the law requires that the “student must provide other evidence indicating the student’s sex at the time of birth.” The law does not elaborate on what “other evidence” includes.




    The law is intended to target trans youth and prevent them from participating on a sports team that corresponds with their gender identity. This law applies to all trans students.




    The law says that the State Board of Education, local boards and charter school governing bodies are in charge of adopting and enforcing policies related to this law. The text of the statute itself does not specify the enforcement mechanism or procedures, nor does it clearly lay out what would happen if a district refused to comply.




    • The law states that schools are required to provide students and employees with a “reasonable accommodation” regarding the use of multi-occupancy bathrooms or changing facilities. However, the law specifically excludes from a reasonable accommodation “access to a restroom or changing facility that is designated for use by members of the opposite sex while members of the opposite sex are present or could be present.” Because the law defines “sex” to be that assigned at birth or notated on an original birth certificate, the law prevents trans students from using multi-occupancy restrooms and changing facilities that match their gender identity.

The law also creates a new type of lawsuit that private individuals can bring against a school system if that system “intentionally allowed a member of the opposite sex to enter the multi-occupancy restroom or changing facility while other persons were present.” In other words, the law authorizes any student or employee who believes they have been in a restroom or locker room at the same time as a transgender student or employee to file a lawsuit against that school. This wrongly encourages schools to prohibit student use of bathrooms and locker rooms that match a student’s gender identity.




    No. The law does not require schools with trans inclusive policies to change their rules to prevent trans students from using bathrooms that match their gender identity. However, it allows students and their families who disagree with those policies to file lawsuits against school systems if trans students use bathrooms that match their gender identity. Schools that do adopt such policies will be liable for money damages if such a lawsuit is filed. This means that a school system that maintains trans inclusive policies regarding the use of restrooms and changing facilities risks owing taxpayer money to students or employees who bring these lawsuits.


If you are the parent of a trans or non-binary child who is being excluded from participating in public school sports due to gender identity, or who is being prohibited from using the restroom that matches their gender identity at school, please contact us at: http://bit.ly/gethelpACLUTN.

*This document does not give legal advice, and you should not rely on it as legal advice. You should speak with a lawyer to get advice on your specific situation.

Sources
1Age of Individuals Who Identify as Transgender in the United States | Williams Institute
2 The 2019 National School Climate Survey | GLSEN
3 AACAP Statement Responding to Efforts to ban Evidence-Based Care for Transgender and Gender Diverse Youth | AACAP
4 Hecox et al v. Little et al Memorandum Decision & Order | ACLU
5 Stop talking about testosterone – there’s no such thing as a ‘true sex’| The Guardian

2022-03-29T13:03:35-05:00 January 26th, 2022|Categories: Know Your Rights, Legal and Community Resources|