Login | August 22, 2019

Experts weigh in on Title IX regs for transgender students

Guest columists

Published: August 17, 2016

In our first article, we examined what “transgender” means and how educational institutions with Title IX funding should approach policy alignment and the creation of response protocols for transgender students. Now, we will begin to explore some practical considerations of adhering to the legal obligations with regard to a transgender student.

What Are the Medical Stages of Transition for a Transgender Person?

Medically speaking, there are three stages of transition for a person with gender dysphoria. The first stage is termed “social transition,” and involves no medical intervention. When transitioning socially, individuals may:

• Dress in clothes consistent with their gender identity;

• Modify their appearance, such as hair length and the application (or lack) of makeup and/or jewelry; and

• Change their name and/or pronouns to be affirming of their gender identity.

Unlike in other stages, all of these actions are reversible. Allowing a child or adolescent to experiment in social transition, particularly in a safe environment, is very important in both affirming their identity, and giving them a chance to experience life in the gender they identify as. The vast majority of children who identify as transgender or gender diverse are the happiest when permitted to dress and express themselves consistent with their identity.

The next stage is “pubertal suppression,” the first medical stage of transition. If a person has identified as gender dysphoric at a relatively young age, the start of puberty is often very distressing to them. Puberty will change their bodies into exactly what they do not want (e.g., growing breasts for an identified male, or phallic enlargement for an identified female). As a result, their gender dysphoria and depression typically worsen with the onset of puberty.

For about 40 years, pediatric endocrinologists have been using agents (GnRh agonists) to pause puberty, as we see children with early onset puberty for different reasons. We use these puberty blockers once the child has initiated puberty. The pause caused by these agents, again, is completely reversible and, once removed, the body will return to pubertal progression. Thus, once a child has initiated puberty (breast development from age 8 to 12 years in biological females and testicular enlargement from age 9 to 13 years in biological males), we can stop the progression. Stopping puberty also gives the transgender person and his or her family more time to explore gender identity without worsening gender dysphoria.

The final stage of medical transition is “cross hormone therapy.” In the United States, the discussion regarding cross hormones begins at age 14. Many factors need to be considered before starting this process, including mental health support, readiness to assume responsibility for taking medication, and an understanding of fertility and side effects of hormone therapy. In addition, a letter from a qualified mental health professional is required. If a person has been on puberty suppressors, starting cross hormones is a relatively straightforward process.

If a person presents to medical care at an older age, having gone through his or her biological puberty, we will start cross hormone treatment only if mental health support agrees. In these cases, we have a couple options to consider. In affirmed males, we can stop periods (which are usually very distressing) and initiate testosterone therapy. In affirmed females, we can use estrogen therapy and an androgen receptor blocker to help decrease the effects of endogenous testosterone. In these cases, the individual has already gone through his or her biological puberty, and cross hormones must counteract these changes. Physical outcomes may not be as “passable” compared to those who have been on puberty blockers and experienced only one puberty.

Another huge consideration is surgery. Only 30 percent of transgender individuals pursue gender-affirming surgery. Surgical options for affirmed males include chest reconstruction, hysterectomy and a procedure called metoidioplasty, which allows upright urination and a more male appearance of the genitals. Construction of a neophallus is not perfect and often results in loss of sensation, so it’s currently not routine practice. For affirmed females, vaginoplasty is very successful and can result in pleasurable sexual experience. Again, not all transgender individuals choose surgery.

Gender diverse individuals may choose to undergo some or all of these options. Every person’s gender journey is different. The main concern is how transgender individuals choose to express their gender identity and to honor that decision.

How Will We Know If We Have a Transgender Student?

Normally, educators will find out that a student is transgender when he or she discloses a gender identity to another teacher, guidance counselor or staff member. If a student claims to be transgender, chances are that he or she is. Title IX regulations do not require the student to present a medical note or proof. Self-identification is all that is needed.

In addition, it’s important to be vigilant and aware of signs that you may have a transgender issue on the horizon. Oftentimes, these students are targets of bullying and harassment by other students because they dress or act differently than their biological sex. Schools may first learn of such bullying from rumors of a student being “weird” or a “freak” for his or her gender expression. Educational institutions must squarely address reports of bullying in these situations and ensure that appropriate support systems and resources are identified for the student. Developing strong lines of communication with the parents and targeted student is key to ensuring your legal obligations are met. Generally, the student (if transgender) will be in a position to feel safe self-identifying in educational environments that are perceived as safe and supportive.

You may also learn about a transgender student from that child’s parent or guardian. With the increase of awareness around transgender issues, parents are more visible as advocates for their transgender child. That said, there are situations where parents or guardians are not supportive.

What Steps Should We Take If We Learn a Student is Transgender?

Your first priority is to “stop, listen, gather information and step back.” Do not render an opinion or express a position on the issue at the moment you receive information that one of your students is transgender. These situations are complex, and it’s reasonable to take appropriate time to review and examine the circumstance before taking a stand on how it will be handled.

Pull together relevant information about the student, including age, parents/guardians, educational performance and the context in which you learned about his or her transgender status. If the student is the one who notified you, ask whether his or her parent/guardian knows and how supportive they have been. It’s critical to know if the parent/guardian is supportive or not. There will be situations where the parent/guardian does not accept that his or her child is transgender and the student has no support network outside the four walls of the school. In situations where the parent/guardian is not accepting or supportive of the student self-identifying as transgender, the school will need to carefully examine how to proceed in a manner that meets legal obligations to the student and honors the “in loco parentis” role.

In addition to often being the targets of bullying, transgender individuals are considered a high-risk, marginalized population that is often underserved. In a survey published in 2011 by the Human Rights Campaign, 60 percent of transgender youth attempt suicide, compared to 10 percent of non-transgender youth. This result only shows those who can respond and cannot report how many were successful in suicide. There is a clear higher rate of depression, anxiety and social isolation in this population. Many only feel comfortable interacting anonymously online, and thus socially isolate themselves. Social anxiety is also quite common in adolescents, and many choose to drop out of school given their anxiety and bullying they experience at school. If a family is not accepting, a fair portion of youth are ostracized and find themselves homeless, faced with more high-risk situations. A recent study published in January 2016 in PEDIATRICS from University of Washington shows that transgender youth who have accepting families fair better psychologically and scholastically than age-matched peers. Acceptance and affirmation of these individuals is the key to their ultimate success.

What Can We Do Now?

The answer will depend on where the transgender student is in his or her transition process. It’s key to understand that transitioning from one gender to another is a process, both emotionally and physically. Consequently, the school’s obligations will depend on and may change with the transition. For example, if a student is at the beginning stages of self-identifying, he or she may not be asking to use a bathroom of the opposite gender immediately. The student may instead prefer using an available unisex bathroom first. The key is understanding what the student needs. It’s important not to assume, but instead listen to and understand, what exactly is being requested and to adapt and respond in a manner that meets legal requirements.

Key Takeaways for a Transgender Student Response Protocol

Your response protocol should be triggered by any of the circumstances that may result in identifying a transgender student. Whether the student self-identifies, is identified by his or her parent/guardian or comes to your attention through the proverbial “grapevine,” your protocol should be implemented.

The protocol should be based on the principles of “stop, listen, gather information and take a step back.” It should also instill deliberation before decision and pause before action, and allow flexibility to adapt to circumstances where the student does and does not have support outside the four walls of your school.

Our next article will address two key consequential legal implications within the school environment – privacy and record keeping – and how your transgender student response protocol should address those issues.

Sarah Moore Esq., is a partner at the Cleveland office of Fisher Phillips, a national labor and employment law firm. Karin Selva M.D., is a board-certified pediatric endocrinologist at Legacy Health Services in Portland, Oregon.