Schools are struggling to protect trans students against discriminatory state laws

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State laws targeting transgender kids have left school districts across the country in a challenging legal situation, experts say.

Schools across the country have been left to navigate a spate of discriminatory state laws targeting transgender youth over the past several months, forcing them to determine if — and how — they are able to fight back.

Nine states have passed laws or implemented executive orders in the past year to stop transgender athletes from playing on the team of their gender, with Texas the latest state to pass such a ban. Tennessee enacted a law in May designed to keep transgender students out of multi-user bathrooms that correspond to their gender, in addition to a transgender sports ban.

Some schools have pushed back against those policies, while others have not.

The Tennessean reported that the Metro Nashville Board of Education in Tennessee, for instance, decided in November not to change the district's language on who is eligible to play school sports despite the provisions of a new state law.

The district's policy states that "no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against in any athletic program of the school." The state law requires the school to add language mandating that students "meet the eligibility requirements set forth by the state and the governing body of the sport."

Those eligibility requirements, board member Emily Masters argued, were "immoral," "unethical," and "a violation of civil rights" because, she said, they would force students to provide documentation showing their assigned sex at birth.

The board has not yet decided if or when it will review its policy again to comply with the new law. Board members are currently awaiting the outcome of a lawsuit filed against state and county officials, including Republican Gov. Bill Lee, over the trans sports ban before it makes a decision to implement new language.

That suit was filed by Lambda Legal, the American Civil Liberties Union, and the American Civil Liberties Union of Tennessee on behalf of transgender high schooler Luc Esquivel on Nov. 4. Esquivel wants to play on the boys golf team at his school but is barred from doing so under the new state law.

At least one school board in Florida has also bucked state regulations banning transgender student athletes from playing on the team of their gender. In June, after Florida Gov. Ron DeSantis (R) signed the state's trans sports ban into law, the Broward County School Board signed a proclamation against it, stating that "participating in sports provides critical life lessons like teamwork, dedication, and leadership that should be available to all youth including transgender youth."

Other school districts have declined to push back, enforcing new laws targeting transgender students, who say they are being unfairly discriminated against.

Tobi, a transgender student who attends Siegel High School in Murfreesboro, Tennessee, told the American Independent Foundation in August that he was harassed by other students for using the boys bathroom. Tobi's mother, Sherri Yandle, said the school's assistant principal had responded to those complaints by saying that "because of Governor Lee's laws ... the other students could sue the school if they didn't like it that a transgender child [was] in the bathroom."

LGBTQ advocates and policymakers have said that these state laws put a burden on schools because it's often unclear how they should enforce them. The Biden administration has simultaneously told schools that excluding trans students from activities and facilities is unlawful.

In June, the U.S. Department of Education said that Title IX, the law that prohibits sex-based discrimination in federally funded schools and school education programs, applied to transgender students; in August, officials from the Justice Department and Department of Education released a video telling trans kids and their families to contact the agencies if trans students faced discrimination while pursuing their education.

When asked how schools are responding to these state anti-trans laws, even as the federal government called them illegal, Jason Starr, director of litigation for the Human Rights Campaign, said that many officials are essentially left operating in a state of confusion.

"A lot of school districts are really, really stuck," he said.

He continued, "You think about the ways in which these laws are constructed and liability falls to the district. And when I say that, I mean, the liability certainly falls to them when it comes to the way the law is constructed that allows private citizens to bring a lawsuit ... but also they would be the subject of lawsuits alleging that they are either forced to or they choose to enact these policies pursuant to the state law that is in violation of federal law."

Some schools, therefore, prefer "not to know" what to do.

"The laws didn't come with any regulations and guidelines and guidance or anything that would suggest how you are supposed to enforce it," Starr added.

In the meantime, students, parents, and transgender advocates are left in a lurch, waiting to see if the Biden administration will take on each of the discriminatory laws impacting them.

"I'll leave that to the Department of Justice to determine if they're going to challenge that," White House press secretary Jen Psaki said in October, referring to a new Texas law banning trans students from participating on the sports teams of their gender. "But again, our view, the president's view, is that transgender rights are human rights, whether for adults, for kids, and that continues to be our policy."

Published with permission of The American Independent Foundation.