Incoming Emmaus High freshman Sigourney Coyle had already been offered an accommodation to avoid changing in the school locker room when her speech to the school board about transgender inclusive policies went viral.
“I’m here to discuss the letter that [President] Obama sent,” she began. “I’m a woman, I identify as a woman, and you can’t make me change in front of someone I don’t identify with and who is physically male.”
In the letter she refers to, often casually referred to as the “transgender bathroom law,” the U.S. Department of Justice and Department of Education assert transgender students are protected by Title IX and provide a framework for how to comply with that new classification.
“A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity,” according to the most hotly debated portion of that guidance, kicking off lawsuits around the country.
As those lawsuits work their way through the courts, school districts hoping for a clear answer on how to interpret the mandate are in a bind.
“We’re saying, ‘Why don’t you deal with students case by case, one at a time, for now … so that we can wait and see where the dust settles,” said Emily Leader, a lawyer with the Pennsylvania School Boards Association.
On Aug. 22, a federal judge in Texas blocked the enforcement of the mandate, further muddying the legal waters.
Previously, the Department of Education could threaten to withhold federal funds from schools that did not comply with the guidance of the letter. With the injunction, federal investigators can still take up complaints the guidance isn’t followed, but they can’t enforce it.
But, transgender students can still sue their schools based on the rules in the mandate — as can students who don’t don’t want to use a changing room with transgender students.
“It could be a student claiming discrimination because they’ve not been accommodated the way they wish to be, or it could be a student claiming there’s a violation to constitutional right to bodily privacy,” said Leader, explaining the concerns that school officials have to balance.
So what’s a school district to do to avoid being slapped with a lawsuit? For Emmaus High, it means giving Coyle the option to take gym over the summer — and change at home. On Facebook, her mother posted, “She is thrilled!” with that offer.
Until state legislation or higher federal courts resolve the issue, school districts should avoid establishing any new policies addressing the issue to avoid landing on the wrong side of the law, according to Leader. She said that could take two or three years.
Or, “call me tomorrow, it could be different,” said Leader.