Center for Human Rights and Constitutional Law
Mail: PO Box 770
Bell Gardens, CA 90201
Practice Advisory Series
Rights of Trans Children in Schools
April 2024
Practice Advisory Forward
The Center for Human Rights and Constitutional Law is a non-profit, public interest legal
foundation dedicated to furthering and protecting the civil, constitutional, and human rights of
immigrants, refugees, children, prisoners, and the poor. Since its incorporation in 1980, under the leadership of a board of directors comprising civil rights attorneys, community advocates and religious leaders, the Center has provided a wide range of legal services to vulnerable low-income victims of human and civil rights violations and technical support and training to hundreds of legal aid attorneys and paralegals in the areas of immigration law, constitutional law, and complex and class action litigation.
The Center has achieved major victories in numerous major cases in the courts of the United States and before international bodies that have directly benefited hundreds of thousands of disadvantaged persons.
This practice advisory is intended to provide resources and information about how to
advocate for and protect trans youth.
Please feel free to email pschey@centerforhumanrights.org if you would like to suggest
updates or edits to portions of this practice advisory.
The Center’s practice advisories and other training materials may be accessed through this link. The following practice advisory may be downloaded at this link.
Peter Schey
President and Executive Director
Center for Human Rights and
Constitutional Law
I. Title IX Prohibits Discrimination on the Basis of Sex
II. U.S. Dept. of Justice - Civil Rights Division Guidance
III. Department of Education Guidance
IV. Relevant Case Law
SUPREME COURT
a. Bostock v. Clayton County, 140 S. Ct. 1731 (2020)
b. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
FEDERAL DISTRICT COURTS
a. Grimm v. Gloucester Cnty. Sch. Bd., 972 F .3d 586 (4th Cir. 2020)
b. Adams v. Sch. Bd. of St. Johns Cnty., 968 F .3d 1286 (11th Cir. 2020)
c. Koenke v. Saint Joseph’s Univ., No. CV 19-4731, 2021 WL 75778 (E.D. Pa. Jan. 8, 2021)
d. Doe v. Univ. of Scranton, No. 3:19 - CV-01486, 2020 WL 5993766, at *11 n. 61 (M.D. Pa. Oct. 9, 2020)
e. C.P . v. Blue Cross Blue Shield of Ill., 536 F . Supp. 3d 791 (W.D. Wash. 2021)
V. 504 Plans Can and Should Include Respecting the Student’s Gender
A. Section 504 plan is meant to be expansive and individualized.
B. Experts in disability rights, civil rights, and gender find that including gender affirming treatment in 504 plans is a best practice for schools.
C. Gender affirming treatment is a proper plan for addressing for stress, harassment, and bullying which all impact a student’s access to education.
D. In addition to being a proper plan for addressing [student’s] other identified disabilities, gender dysphoria may also be a disability that can be addressed by a 504 plan.
E. Schools have an obligation to respect students’ gender identities in addition to their obligation to develop and follow an appropriate 504 plan.
I. Title IX Prohibits Discrimination on the Basis of Sex
Under current US Title IX law, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance …”1 (emphasis added). The Office for Civil Rights (“OCR”) within the U.S. Department of Health and Human Services advises that sex discrimination can “take many forms” including “gender-based or sexual harassment such as making unwelcome sexual comments, advances and/or name calling on the basis of sex.”2
Title IX not only prohibits sexual harassment but also prohibits discrimination on the
basis of sex.
II. U.S. Dept. of Justice - Civil Rights Division Guidance
On March 26, 2021, the U.S. Department of Justice, Civil Rights Division released a
Memorandum entitled “Application of Bostock v. Clayton County to Title IX of the Education
Amendments of 1972” (“DOJ Memorandum”).3 The DOJ Memorandum notes that “Executive
treatment under the law, no matter their gender identity or sexual orientation.”4 Executive Order 13988 “explains that Bostock’s reasoning applies with equal force to other laws that prohibit sex discrimination ‘so long as the laws do not confirm sufficient indications to the contrary.”5
The DOJ Memorandum thus explains that “Title IX’s ‘on the basis of sex’ language is
sufficiently similar to ‘because of’ sex under Title VII as to be considered interchangeable.”6 It
goes on to say that the “same reasoning [in Bostock] supports the interpretation that Title IX’s prohibition of discrimination ‘on the basis of’ sex would prohibit recipients from discriminating against an individual based on that person’s sexual orientation or transgender status.”7 The DOJ Memorandum adds that “[t]his interpretation of Title IX is consistent with the Supreme Court’s longstanding directive that ‘if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.”8 Accordingly, the DOJ Memorandum concludes that “the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”9
III. Department of Education Guidance
On June 22, 2021, the Department of Education released an Interpretation on the
Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County (“Interpretation”) in the Federal Register, and it was immediately effective.10 The Interpretation explains that the Office for Civil Rights will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation ; and (2) discrimination based on gender identity.
The Interpretation provides that the Department of Education’s Office for Civil Rights
“has long recognized that Title IX protects all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of sex discrimination.”11 Critically, the Interpretation interprets “Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity” and provides that “[a]dressing discrimination based on sexual orientation and gender identity thus fits squarely within OCR’s responsibility to enforce Title IX’s prohibition on sex discrimination.”12
The Interpretation roots itself in the Supreme Court’s ruling in Bostock v. Clayton Cty.,
140 S. Ct. 1731 (2020). In Bostock, the Supreme Court held that employers violated Title VII of the Civil Rights Act of 1964 when they fired a long-time employee shortly after the employee revealed that they were homosexual or transgender and allegedly for no other reason than the employee’s homosexuality or transgender status. The Court stated, “The statute’s message for our cases is equally simple and momentous: An indiviudal’s homsexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”13 (emphasis added). The Interpretation provides, “As the Court also explained, when an employer discriminates against a person for being gay or transgender, the employer
necessarily discriminates against that person for ‘traits or action it would not have questioned in members of a different sex.”14
Accordingly, the Interpretation states, “For the reasons set out below, the Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock - that discrimination ‘because of … sex’ encompasses discrimination based on sexual orientation and gender identity - properly guides the Department’s interpretation of discrimination ‘on the basis of sex’ under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity.”15 Resultantly, “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”16 The Interpretation states:
OCR will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities. This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.17
IV . Relevant Case Law
SUPREME COURT
a. Bostock v. Clayton County, 140 S. Ct. 1731 (2020)
In Bostock, the Court ruled that Title VII’s sex discrimination ban extends to
discrimination based on sexual orientation or gender identity. In the decision, the “Court’s
decision assumed, but did not decide, that the term ‘sex’ in Title VII refers to biological
distinctions between females and males.”18 As a result, “in the Court’s view, because sex is a but-for cause of sexual orientation and gender-identity discrimination, such discrimination
violates Title VII.”
b. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
In Price Waterhouse, “a four-justice plurality determined that discriminating against
individuals based on a failure to conform to stereotypes about how men or women should behave is unlawful discrimination under Title VII.”19 Of sex stereotyping, the Court stated, “for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”20
FEDERAL DISTRICT COURTS
Numerous Federal courts have relied on Bostock to recognize that Title IX’s prohibition
on sex discrimination encompasses discrimination based on sexual orientation and gender
identity.
a. Grimm v. Gloucester Cnty. Sch. Bd., 972 F .3d 586 (4th Cir. 2020)
Plaintiff Gavin Grimm, a transgender male, brought this case against the Gloucester
County School Board based on their refusal to allow him as a transgender male to use the boys restroom at Gloucester County High School.21 Plaintiff had “changed his first name to Gave and expressed his male identity in all aspects of life” and by his sophomore year of high school, he was “living fully as a boy.”22 While the school at first allowed him to use the boys bathroom, the School Board “ultimately adopted a policy under which students could only use restrooms matching their ‘biological gender” after receiving backlash from the community and parents.23
Grimm sued, alleging that, “as applied to exclude him from the boys bathrooms, the
Board’s policy violated the Equal Protection Clause of the Fourteenth Amendment and
constituted discrimination on the basis of sex, in violation of Title IX of the Education
Amendments of 1972.”24 In evaluating Grimm’s Title IX claim, the 4th Circuit stated “[a]lthough Bostock interprets Title VII of the Civil Rights Act of 1964, it guides our evaluation of claims under Title IX.”25 The Court states, “After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restroom discriminated against him ‘on the basis of sex.” The Court explains, “In Bostock, the Supreme Court held that discrimination against a person being transgender is discrimination ‘on the basis of sex.”26 The Court provides the following reasoning to its decision:
…[T]he Board could not exclude Grimm from the boys bathrooms without referencing
his ‘biological gender’ under the policy, which it has defined as the sex marker on his
birth certificate. Even if the Board’s primary motivation in implementing or applying the
policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board’s actions. Therefore, the Board’s policy excluded Grimm from the boys
restrooms ‘on the basis of sex.’27 Then the Court turned to the “heart of the Title IX question in this case: whether the policy unlawfully discriminated against Grimm.” The Court starts its analysis by stating that “[i]n the Title IX context, discrimination ‘mean[s] treating that individual worse than others who are similarly situated.”28 Applying this rule, the Court concluded that “Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender” and “[u]nlike the other boys, he had to use either the girls restroom or a single-stall option,” and thus, “he was treated worse than similarly situated students.”29 As a result, the Court found that the Board’s application of its restroom policy against Grimm violated Title IX.30
b. Adams v. Sch. Bd. of St. Johns Cnty., 968 F .3d 1286 (11th Cir. 2020)
Plaintiff Drew Adams, a transgender male, was forbidden to use the boys’ restroom at
Nease High School even though “school officials considered him a boy in all [other] respects.”31 During eighth grade, Adams realized he was transgender, and his psychiatrist recommended “Adams socially transition to living as a boy.”32 The Court reports that “[a]longside his social and medical transition, Mr. Adams amended his legal documents to reflect his male sex.”33 Adams’s mother “informed the school that Adams was transgender, currently transitioning, and should be considered a boy student.”34 For the first several weeks Adams used the boys’ bathroom but then “the school pulled Mr. Adams from class and told him he could no longer use the boys’ restroom because students had complained.”35 While the school did have a LGBTQ Best-Practices Policy, which included using students’ preferred names and pronouns, the policy provided that “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex,” and the school declined to permit transgender students to use the restroom according to their gender identity.36
Adams brought suit, alleging that the “School Board violated his right to equal protection
under the Fourteenth Amendment and his rights under Title IX by barring him from the boys’
bathrooms at school.”37 On review, the Eleventh Circuit found that Adams should prevail on his Title IX claim. The Court states,
There is only one dispute about Mr. Adam’s Title IX claim: whether excluding Mr. Adams from the boys’ bathroom amounts to sex discrimination in violation of the statute. We conclude that this policy of exclusion constitutes discrimination. First, Title IX protects students from discrimination based on their transgender status. And second, the School District treated Mr. Adams differently because he was transgender, and this different treatment caused him harm. Finally, nothing in Title IX’s regulations or any administrative guidance on Title IX excuses the School Board’s discriminatory policy.38
In coming to this conclusion, the Court cites Bostock, advising that the Supreme Court
“instructed that ‘it is impossible to discriminate against a person for being … transgender
without discriminating against that individual based on sex.”39 Using Bostock, the Court
“conclude[s] that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.”40
The Court then turns to the question of whether the School District discriminated against Adams by barring him from the boys’ restroom because he is transgender. The Court advises that “[d]iscrimination ‘refers to distinctions or differences in treatment that injure protected individuals.”41 The Court further notes that “Title IX’s implementing regulations explain that a
school cannot ‘[s]ubject any person to separate or different rules of behavior, sanctions, or other treatment’ on the basis of sex.”42 The Court ultimately finds that the “School Board failed to honor Mr. Adams’s’ rights under the Fourteenth Amendment and Title IX.”43
However, the original Eleventh Circuit opinion from August 7, 2020 was later vacated
and replaced.44 The revised opinion does not reach the Title IX question and reaches only one ground under the Equal Protection Clause. Since the Court “concluded that Mr. Adams prevails on his equal protection claim, which fully entitles him to the relief granted by the District Court,” they then “declined to reach his Title IX claim.”45 Thus, the Court left in place the District Court’s conclusion that “the meaning of ‘sex’ in Title IX includes ‘gender identity’ for purposes of its application to transgender students” and its finding that “Adams has proven a Title IX violation because the School Board … prohibits Adams, a transgender boy, from using the boys’ restroom ‘on the basis of sex,’ which discrimination caused him harm.”46
On August 23, 2021, though, the Eleventh Circuit voted in favor of granting rehearing en
banc, and it vacated the panel’s prior opinion.47 In 2022, the Court performed contortions to
change their opinion.
Judge Lagoa wrote, “This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex. . .We hold that . . . separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.” In a wild shift, the court claimed that in order to challenge the school’s bathroom policy, he could not challenge it as-applied and instead had to challenge the practice, generally, of distinguishing between genders in assigned bathrooms.48 It found that “[t]he Equal Protection Clause claim must fail because, as to the sex discrimination claim, the bathroom policy clears the hurdle of intermediate scrutiny and because the bathroom policy does not discriminate against transgender students. The Title IX claim must fail because Title IX allows schools to separate bathrooms by biological sex.”
The court ultimately found that the policy of forcing Adams to use the girl’s bathroom
passed intermediate scrutiny because “the School Board believes its bathroom policy is
necessary to ensure the privacy and overall welfare of its entire student body under the governing Florida statute. We will not insert ourselves into the School Board’s ongoing development of policies to accommodate students struggling with gender identity issues.”
Although the court found for the school on the question of using gendered bathrooms in
accordance with true, rather than assigned, gender, it noted that the school allowed transgender students to use gender neutral bathrooms. At minimum, an advocate or trans youth can demand that a gender neutral option be made available.
c. Koenke v. Saint Joseph’s Univ., No. CV 19-4731, 2021 WL 75778 (E.D. Pa. Jan. 8, 2021)
Plaintiff Noel Koenke filed an “employment discrimination action pursuant to Title IX of
the Education Amendments of 1972 against her former employer, Defendant Saint Joseph’s
University, asserting claims of discrimination based on her sexual orientation.”49 Although the Court ultimately granted Defendants’ motion to dismiss the case for failure to state a claim, it did in its discussion of sexual orientation as a protected class find that “Title IX’s prohibition on sex discrimination constitutes a prohibition on sexual orientation discrimination.” It cites Bostock’s holding that “Title VII prohibits employment discrimination on the basis of sexual orientation, through its prohibition of discrimination on the basis of ‘sex.”50
d. Doe v. Univ. of Scranton, No. 3:19 - CV-01486, 2020 WL 5993766, at *11 n. 61 (M.D. Pa. Oct. 9, 2020)
Plaintiff John Doe filed a case against Defendant, the University of Scranton. Plaintiff
alleged that he was subject to “peer-on-peer harassment” which was based “on his sexual
orientation, gender stereotyping and/or sex.” The Plaintiff lived in on-campus housing, which
was subject to some University regulation, with four other male University students. One of
these roommates, Mallon, consistently made “homophobic remarks,” and after that roommate found out that Plaintiff was gay, he “frequently ostracized Plaintiff and spoke down to him, as the only openly gay roommate in the house, in a denigrating matter.”51 Additionally, Mallon “sent an offensive group text message that referenced a sexual encounter between Plaintiff and his ex-boyfriend.” Plaintiff then complained to an administrative assistant at the University’s Academic Advising Center “about his living situation,” and according to Plaintiff, “his complaint was not taken seriously.”52 Plaintiff alleged that the administrative assistant “merely indicated that some people might take issue with Plaintiff’s homesexuality and then said something to the effect of ‘you only have to live with [Mallon] one more semester after this.”53 Plaintiff alleged that the harassment continued and culminated in a physical attack where Plaintiff was referred to as a “faggot” and his life was threatened.54 Plaintiff “alerted both the campus police and the University’s Dean of Students” about the attack and lodged a complaint “with Dean Rivera regarding the discrimination, harassment, and physical confrontation that he experienced because of his sexual orientation.”55
The University “declined to find that the aggrieved of conduct violated the University’s
sexual harassment policy or Title IX policy.”56 Defendant did implement a no-contact order, but Plaintiff “continued to encounter his former roommate on campus,” leading him to avoid certain locations on campus out of fear of an encounter.57
As part of his Complaint, Plaintiff alleged that “Defendant displayed deliberate
indifference to his reports of peer-on-peer harassment, and responded to the [physical attack] in a discriminatory manner, based on his ‘sexual orientation, gender stereotyping, and/or sex’ in violation of Title IX.”58 In analyzing this claim, the Court stated that “[f]or the purposes of Title IX, a school’s deliberate indifference to student-on-student harassment can constitute actionable sex discrimination under ‘certain limited circumstances…” The test for liability for student-on-student harassment requires establishing the following:
(1)The defendant receives federal funds; (2) sexual [or racial] harssment occurred; (3) the harassment occurred under ‘circumstances wherein the recipient exercise[d] substantial control over both the harasser and the context in which the known harassment occur[red]; (4) the School [] had “actual knowledge” of the harassment; (5) the School [] was “deliberately indifferent” to the harassment; and (6) the harassment was “so severe, pervasive, and objectively offensive that it [could] be said to [have] deprive[d] the victims of access to the educational opportunities or benefits provided by the school.59
Because of the test above requiring “substantial control,” the Court found that Plaintiff hadn’t
made sufficient allegations to sustain a claimed violation of Title IX, but they gave him leave to amend.
e. C.P . v. Blue Cross Blue Shield of Ill., 536 F . Supp. 3d 791 (W.D. Wash. 2021)
The 9th Circuit in discussing Section 1557 of the Affordable Care Act, which incorporates Title IX, to prohibit discrimination based on sex in healthcare advised, “Though the Supreme Court has not yet decided whether discrimination against a person for being
transgender violates Title IX, it recently held in Bostock v. Clayton Cnty. that ‘[a]n employer who fires an individual merely for being gay or transgender violates Title VII,’ which prohibits sex discrimination in employment.”60 The Court then goes on to say, “It would be logically
inconsistent with Bostock to find that Title IX permits discrimination for being transgender.”61
V . 504 Plans Can and Should Include Respecting the Student’s Gender
A. Section 504 plan is meant to be expansive and individualized.
Section 504's regulations require that educational aids and services are "designed to meet individual education needs" as required under 34 C.F.R. § 104.33(b)(1)(i). The regulations “gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled.”62 IDEA and 504 FAPE requirements are "overlapping but different."63 "[A] showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under Section 504.”64 Under Section 504 regulations, FAPE requires "regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [34 C.F.R.] §§ 104.34, 104.35, and 104.36."65 Schools "must evaluate students with disabilities to formulate § 504 Plans designed to aid the student's access to the general curriculum."66 504 is expressly different from IDEA because it is a broader and more individualized solution, with fewer strict requirements, addressing challenges for students with disabilities even if they are not academic comprehension challenges covered by IDEA - the purpose of 504 plans is to be unique and tailored to the student.
B. Experts in disability rights, civil rights, and gender find that including gender affirming treatment in 504 plans is a best practice for schools.
guide published by the ACLU, Gender Spectrum, National Center for Lesbian Rights, National Education Association, and Human Rights Campaign, explains that “[t]hrough a special education plan, schools can provide basic accommodations like use of the student’s chosen name and access to the appropriate restrooms. The IEP or Section 504 Plan can also account for other needs like stress breaks throughout the school day to help reduce anxiety. Even when the school is fully supportive of a transgender student, having an IEP or Section 504 Plan in place will help ensure that the student receives a consistent level of support throughout any changes in school or district administration, even if the student moves to another school or district.”67
C. Gender affirming treatment is a proper plan for addressing for stress, harassment, and bullying which all impact a student’s access to education.
(“OCR Guide”) explains that “Section 504 prohibits disability-based harassment by peers that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the school’s education programs and activities (in other words, creates a hostile environment).”68 Under Section 504 and Title II, students with disabilities are also protected from bullying or harassment by teachers, other school employees, and third parties. The guide provides that teacher or employee harassment against a student “can trigger a school’s obligation to address disability-based harassment, remedy a denial of FAPE, or both.”69 Further, “harassment does not have to include intent to harm, be directed at a specific targeted student, or involve repeated incidents in order for it to be considered discriminatory.”70
It is irrelevant whether the bullying based on disability; schools also have “responsibilities under Section 504’s FAPE requirements when a student with a disability is
harassed or bullied on any basis (for example, bullied based on disability, or national origin, or homelessness, or appearance). This is because the bullying or harassment can result in a denial of FAPE under Section 504 and, if that occurs, it must be remedied. FAPE may be denied to a student when, for example, the effects of the bullying include adverse changes in the student’s academic performance or behavior.”71
D. In addition to being a proper plan for addressing [student’s] other identified disabilities, gender dysphoria may also be a disability that can be addressed by a 504 plan.
One possible approach, although it’s not the best or easiest option, is to explain that while being transgender is not a disability, some courts have “recognized the possibility that gender dysphoria, a condition stemming from the mismatch between a person's gender identity and physical or assigned sex, may ‘result[] from physical impairments’ such that it is not categorically excluded under § 12211(b)(1).”72 Doe v. Mass. Dep't of Corr held that "the ADA's exclusion applies only to 'gender identity disorders not resulting from physical impairments,' and [the plaintiff] has raised a dispute of fact that her [gender dysphoria] may result from physical causes’ by pointing to studies ‘demonstrating that [gender dysphoria] diagnoses have a physical etiology, namely hormonal and genetic drivers contributing to the in utero development of dysphoria") (internal citation omitted). Gender dysphoria - and attendant anxiety and depression it sounds like the student experiences - are disabilities that require accommodation.
E. Schools have an obligation to respect students’ gender identities in addition to their obligation to develop and follow an appropriate 504 plan.
In October 2022, California School Boards Association put out a Legal Guidance on
Guidance”). The guidance explicitly provides: “An LEA should accept a student’s asserted
gender and treat the student in a manner consistent with that student’s gender identity, especially where the student either: (1) expresses that identity at school or (2) where there is other evidence that this is a sincerely held part of the student’s core identity. If either criteria is met, then a school may not question the student’s asserted gender identity except in the rare circumstance where school personnel have a credible basis for believing that the student is making that assertion for some improper purpose. Schools cannot require a student to provide any particular type of diagnosis, proof of medical treatment or meet an age requirement as a condition to receiving the protections afforded under California’s antidiscrimination statutes.”73
The guidance also directs schools that even where they have not received confirmation of a legal name change and cannot change all records, “the school should nonetheless update all unofficial school records (e.g., attendance sheets, school IDs, report cards) to reflect the student’s name and gender, consistent with the student’s gender identity, to ensure that the student’s transgender status is not unintentionally revealed by school records.”
AB 1266 and Education Code Section 220 also protect [student/client] from the
harassment she has faced in school. The California Department of Education put out an FAQ on School Success and Opportunity Act (Assembly Bill 1266) (“FAQ”). The FAQ guides that “[i]f a student so chooses, district personnel shall be required to address the student by a name and the pronouns consistent with the student’s gender identity, without the necessity of legal documentation or a change to the student’s official district record. The student’s age is not a factor. . . To ensure that transgender students have equal access to the programs and activities provided by the school, all members of the school community must use a transgender student’s chosen name and pronouns. Schools should also implement safeguards to reduce the possibility of inadvertent slips or mistakes, particularly among temporary personnel such as substitute teachers.”74
Further, purposefully or negligently failing to refer to a student consistent with their
gender identity so constitutes unlawful harassment. “If a member of the school community
intentionally uses a student’s incorrect name and pronoun, or persistently refuses to respect a student’s chosen name and pronouns, that conduct should be treated as harassment. That type of harassment can create a hostile learning environment, violate the transgender student’s privacy rights, and increase that student’s risk for harassment by other members of the school community. Examples of this type of harassment include a teacher consistently using the student’s incorrect name when displaying the student’s work in the classroom, or a transgender student’s peers referring to the student by the student’s birth name during class, but would not include unintentional or sporadic occurrences. Depending on the circumstances, the school’s failure to address known incidents of that type of harassment may violate California’s antidiscrimination laws.”75
1 20 U.S.C.S § 1681(a).
2 Title IX of the Education Amendments of 1972, U.S. Department of Health and Human Services, https://www.hhs.gov/civil-rights/for-individuals/sex-discrimination/title-ix-education-amendments/index.html#:~:text=Title%20IX%20of%20the%20Education%20Amendments%20of%201972%20
3 Memorandum: Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, U.S. Department of Justice Civil Rights Division (March 26, 2021),
4 Id.
5 Id.
6 Id. at 2.
7 Id.
8 Id. at 2 (citing N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982).
9 Id. at 2.
10 86 F.R. 32637 (June 22, 2021).
11 Id.
12 Id.
13 Bostock v. Clayton Cty.,140 S. Ct. 1731, 1741 (2020).
14 86 F.R. 32637, 32638 (June 22, 2021) (citing Bostock v. Clayton Cty.,140 S. Ct. 1731, 1737 (2020)).
15 Id. at 32638.
16 Id. at 32639.
17 Id. at 32639.
18 Transgender Students and School Bathroom Policies: Title IX Challenges Divide Appellate Courts, Congressional Research Service (Apr. 25, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10953.
19 Id. at 2.
20 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (citing Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971)).
21 Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 593 (4th Cir. 2020).
22 Id. at 593.
23 Id. at 593.
24 Id. at 593.
25 Id. at 616.
26 Id. at 616.
27 Id. at 616-617.
28 Id. at 618 (citing Bostock at 1740 (citing Burlington N. & Santa Fe Ry. v. White, 54 U.S. 53, 59 (2006)).
29 Id. at 618.
30 Id. at 619.
31 Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1291 (11th Cir. 2020).
32 Id. at 1292.
33 Id. at 1292.
34 Id. at 1293.
35 Id. at 1293.
36 Id. at 1294.
37 Id. at 1295.
38 Id. at 1304.
39 Id. at 1305 (citing Bostock at 1741).
40 Id. at 1305.
41 Id. at 1306 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)). See also Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174 (2005) (describing sex discrimination under Title IX as ‘differential’ and ‘less favorable’ treatment).
42 Id. at 1306; 34 C.F.R. § 106.31(b)(4).
43 Id. at 1312.
44 Adams v. Sch. Bd., 3 F.4th 1299 (11th Cir. 2021).
45 Id. at 1320.
46 Adams v. Sch. Bd., 318 F. Supp. 3d 1295, 1325 (M.D. Fla. 2018).
47 Adams v. Sch. Bd. of St. Johns Cty., 9 F.4th 1369 (11th Cir. 2021).
48 Adams v. Sch. Bd. of St. Johns Cty., 57 F.4th 791, 796 (11th Cir. 2022)
49 Koenke v. Saint Joseph’s Univ., No. CV 19-4731, 2021 WL 75778 at 2 (E.D. Pa. Jan. 8, 2021).
50 Id. at 3 (citing Bostock at 1731).
51 Id. at *3.
52 Id. at *3.
53 Id. at 3.
54 Id. at 3.
55 Id. at *3.
56 Id. at *5.
57 Id. at *5.
58 Id. at *9.
59 Id. at *10-11.
60 C.P . v. Blue Cross Blue Shield of Ill., 536 F. Supp. 3d 791, 796 (W.D. Wash. 2021)
61 Id. at 796.
62 A.G. v. Paradise V alley Unified School Dist., 815 F.3d 1195, 1203 (9th. Cir. 2016).
63 Lemahieu, 513 F.3d at 925.
64 Id.
65 A.G., 815 F.3d at 1203 (quoting 34 C.F.R. § 104.33(b)(1)) (emphasis omitted).
66 Durbrow v. Cobb Cty. Sch. Dist., 887 F.3d 1182, 1186 n.1 (11th Cir. 2018).
67 Transition Guide at p. 36.
69 OCR Guide at 32; see also 34 C.F.R. §§ 104.4, 104.33; 28 C.F.R. pt. 35.
70 Guide at 32.
71 OCR Guide at 34.
72 Scutt v. Carbonaro CPAs n Mgmt. Grp., No. 20-00362 JMS-RT, 2020 U.S. Dist. LEXIS 182849, at *11 (D. Haw. Oct. 2, 2020) (citing Doe v. Mass. Dep't of Corr., 2018 U.S. Dist. LEXIS 99925, 2018 WL 2994403, at *6 (D. Mass. June 14, 2018).
73 CSBA Legal Guidance at 5.
74 FAQ at section 8.
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