The Oklahoma Bar Journal September 2022

E ducation

Legal Issues Regarding Transgender Students in Oklahoma Schools By Laura L. Holmes and Laura L. Holmgren-Ganz

A RECENT SURVEY CONDUCTED BY THE TREVOR PROJECT focused on the chal lenges experienced by nearly 35,000 lesbian, gay, bisexual, transgender and queer and questioning (LGBTQ) youth ages 13-24 across the United States. Forty-two percent seri ously considered attempting suicide in the past year, while 72% reported symptoms of gen eralized anxiety disorder. Seventy-five percent reported experiencing discrimination based on their sexual orientation or gender identity at least once in their lifetime. Only one in three transgender youth found their home to be LGBTQ-affirming. 1

prohibits discrimination on the basis of gender identity. 4 The First Amendment and the Due Process and Equal Protection clauses of the 14th Amendment have also been raised in cases of gender identity. In several cases involving harassment and discrimination against LGBTQ students, courts have relied upon the Equal Protection Clause to impose a duty on schools to pro tect transgender students from harassment on an equal basis with other students. Courts have recognized that schools must balance the need to support trans gender students while ensuring the safety and comfort of all stu dents. Specifically, courts have held that discrimination against transgender students is discrimi nation on the basis of sex, in vio lation of Title IX and/or the Equal Protection Clause.

During spring 2022, state leg islatures around the country con sidered and, in some cases, passed legislation aimed at gay and trans gender issues in schools. Some of the proposed or enacted legisla tion cited “parents’ rights” to ban any discussion of gay and trans gender issues in public schools. Some states, including Oklahoma, enacted legislation to ban transgen der athletes’ participation in girls or women’s sports. 2 This article discusses the legal issues concern ing transgender students faced by Oklahoma’s public schools. There are currently no explicit legal protections for transgen der students at the federal level. 3 However, courts that have con sidered the issue have concluded that Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimina tion on the basis of sex, also

COURT DECISIONS INVOLVING EMPLOYMENT AND TRANSGENDER PERSONS In 2007, a transgender employee sued her former employer after being told the reason for her termination was her using the female restroom even though she still had male genitalia. 5 She alleged that her termination was for being transgender and failing to conform to the expectations of stereotypical male behavior. 6 The trial court granted the employer’s motion for summary judgment, holding that transgender persons were not a protected class. The 10th Circuit Court of Appeals affirmed the district court’s deci sion, holding that discrimination based on a person’s status as trans gender was not discrimination “because of sex” under Title VII of the 1964 Civil Rights Act (Title VII)

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THE OKLAHOMA BAR JOURNAL