No. 16-273
`
`In The
`Supreme Court of the United States
`
`GloucesTer counTy school Board,
`
`v.
`G.G., By hIs nexT frIend
`and moTher, deIrdre GrImm,
`
`Petitioner,
`
`Respondent.
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Fourth Circuit
`
`BRIEF FOR THE NATIONAL EDUCATION
`ASSOCIATION; AMERICAN FEDERATION OF
`TEACHERS, AFL-CIO; NATIONAL ASSOCIATION OF
`SECONDARY SCHOOL PRINCIPALS; AMERICAN
`FEDERATION OF STATE, COUNTY, AND MUNICIPAL
`EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES
`INTERNATIONAL UNION; AND SCHOOL SOCIAL
`WORK ASSOCIATION OF AMERICA AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`alIce o’BrIen
` Counsel of Record
`erIc a. harrInGTon
`mary deweese
`naTIonal educaTIon assocIaTIon
`1201 16th Street, N.W.
`Washington, DC 20036
`(202) 822-7035
`aobrien@nea.org
`
`Mosaic - (301) 927-3800 - Cheverly, MD
`
`49261_Ltrhd.indd 1
`
`6/11/08 12:44:09 AM
`
`
`
`In The
`Supreme Court of the United States
`
`GloucesTer counTy school Board,
`
`v.
`G.G., By hIs nexT frIend
`and moTher, deIrdre GrImm,
`
`Petitioner,
`
`Respondent.
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Fourth Circuit
`
`BRIEF FOR THE NATIONAL EDUCATION
`ASSOCIATION; AMERICAN FEDERATION OF
`TEACHERS, AFL-CIO; NATIONAL ASSOCIATION OF
`SECONDARY SCHOOL PRINCIPALS; AMERICAN
`FEDERATION OF STATE, COUNTY, AND MUNICIPAL
`EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES
`INTERNATIONAL UNION; AND SCHOOL SOCIAL
`WORK ASSOCIATION OF AMERICA AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`alIce o’BrIen
` Counsel of Record
`erIc a. harrInGTon
`mary deweese
`naTIonal educaTIon assocIaTIon
`1201 16th Street, N.W.
`Washington, DC 20036
`(202) 822-7035
`aobrien@nea.org
`
`Mosaic - (301) 927-3800 - Cheverly, MD
`
`49261_Ltrhd.indd 1
`
`6/11/08 12:44:09 AM
`
`
`
`davId J. sTrom
`amerIcan federaTIon
` of Teachers, afl-cIo
`555 New Jersey Avenue, N.W.
`Washington, DC 20001
`(202) 393-7472
`
`nIcole G. Berner
`servIce employees
` InTernaTIonal unIon
`1800 Massachusetts Avenue, N.W.
`Washington, DC 20036
`(202) 730-7383
`
`JudITh rIvlIn
`amerIcan federaTIon of sTaTe,
` counTy and munIcIpal
` employees
`1101 17th Street, N.W., Suite 900
`Washington, DC 20036
`(202) 775-5900
`
`March 2, 2017
`
`
`
`i
`
`QUESTION PRESENTED
`
`This brief addresses the second question accepted
`for review by the Court:
`
`Whether the Department of Education’s specific
`interpretation of Title IX and 34 C.F.R. § 106.33, which
`provides that a funding recipient providing sex-sepa-
`rated facilities must “generally treat transgender stu-
`dents consistent with their gender identity,” should
`be given effect.
`
`
`
`
`
`iii
`TABLE OF CONTENTS
`
`QUESTION PRESENTED ................................
`
`TABLE OF AUTHORITIES ..............................
`
`INTEREST OF AMICI CURIAE AND
`INTRODUCTION ..........................................
`
`SUMMARY OF ARGUMENT ...........................
`
`ARGUMENT ......................................................
`
`
`
`I. SCHOOL-BASED DISCRIMINATION
`AGAINST TRANSGENDER STUDENTS
`HARMS THEM PROFOUNDLY, BY
`STIGMATIZING AND DENYING THEM
`EQUAL EDUCATIONAL
`OPPORTUNITIES ...................................
`
` II. SCHOOL POLICIES THAT RESPECT
`TRANSGENDER STUDENTS
`PROMOTE A POSITIVE SCHOOL
`CLIMATE FOR ALL STUDENTS ...........
`
` III. CONCLUDING THAT TITLE IX
`PROSCRIBES TRANSGENDER
`DISCRIMINATION WOULD PROVIDE
`ADMINISTRABLE RULES FOR
`EDUCATION EMPLOYEES; A
`CONTRARY RULING WILL CREATE
`CONFUSION AND SOW DISCORD ......
`
` IV. BY COMPELLING EDUCATORS TO
`BE INSTRUMENTS OF HARMFUL
`DISCRIMINATION AGAINST
`STUDENTS, EDUCATORS ARE
`THEMSELVES HARMED BY
`
`Page
`i
`
`v
`
`1
`
`4
`
`6
`
`7
`
`15
`
`26
`
`
`
`iv
`TABLE OF CONTENTS—Continued
`
`
`
`DISCRIMINATORY POLICES LIKE
`PETITIONER’S ........................................
`
`CONCLUSION ...................................................
`
`Page
`
`30
`
`33
`
`
`
`v
`TABLE OF AUTHORITIES
`
`Page
`
`Cases:
`Ambach v. Norwick,
`441 U.S. 68 (1979) ......................................... 16, 17
`
`Bethel Sch. Dist. No. 403 v. Fraser,
`478 U.S. 675 (1986) .................................. 15, 16, 22
`
`Cannon v. Univ. of Chicago,
`441 U.S. 677 (1979) .......................................
`
`City of Cleburne v. Cleburne Living Ctr.,
`473 U.S. 432 (1985) .......................................
`
`Grutter v. Bollinger,
`539 U.S. 306 (2003) .......................................
`
`11
`
`25
`
`16
`
`Obergefell v. Hodges,
`135 S. Ct. 2584 (2015) ...................................
`
`7, 8
`
`Plyler v. Doe,
`457 U.S. 202 (1982) ....................................... 12, 13
`
`Price Waterhouse v. Hopkins,
`490 U.S. 228 (1989) ....................................... 10, 11
`
`United States v. Virginia,
`518 U.S. 515 (1996) .......................................
`
`United States v. Windsor,
`133 S. Ct. 2675 (2013) ...................................
`
`statutes and Regulations:
`
`20 U.S.C. § 1400, et seq. ....................................
`20 U.S.C. § 1681, et seq. ....................................
`29 U.S.C. § 701 ..................................................
`
`10
`
`7
`
`19
`10
`19
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`
`
`775 Ill. Comp. Stat. 5/5-102 ..............................
`775 Ill. Comp. Stat. 5/5-103(O-1) .....................
`Cal. Educ. Code § 220.......................................
`Cal. Educ. Code § 221.5(f) ...............................
`Colo. Rev. Stat. § 24-34-301 ..............................
`Colo. Rev. Stat. § 24-34-601 ..............................
`Conn. Gen. Stat. § 1-1n .....................................
`Conn. Gen. Stat. § 10-15c .................................
`D.C. Code § 2-1402.4(1) ....................................
`Del. Code Ann. tit. 6, § 4503.............................
`Iowa Code § 216.9 .............................................
`Mass. Gen. Laws ch.76, § 5 ..............................
`Me. Rev. Stat. tit. 5, § 4553(8)(j) ......................
`Me. Rev. Stat. tit. 5, § 4553(9-C) ......................
`Me. Rev. Stat. tit. 5, § 4592 ...............................
`Minn. Stat. § 363A.03(44) .................................
`Minn. Stat. § 363A.13 ........................................
`N.J. Stat. Ann. § 10:5-4 ......................................
`N.J. Stat. Ann. § 10:5-5(l)..................................
`N.M. Stat. Ann. § 28-1-7(f) ................................
`N.Y. Educ. Law § 11(6) .....................................
`N.Y. Educ. Law § 12 ..........................................
`Nev. Rev. Stat. § 651.050(3)(k) ........................
`Nev. Rev. Stat. § 651.070 ...................................
`
`Page
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`27
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`
`
`Or. Rev. Stat. § 174.100(7) ................................
`Or. Rev. Stat. § 659.850 .....................................
`R.I. Gen. Laws § 11-24-2 ...................................
`Vt. Stat. Ann. tit. 9, § 4501(1) ...........................
`Vt. Stat. Ann. tit. 9, § 4502 ................................
`Wash. Rev. Code § 28a.642.010 ........................
`34 C.F.R. § 106.33 ..............................................
`
`Page
`27
`27
`27
`27
`27
`27
`3, 33
`
`otheR authoRities:
`
`Anchorage School District, Administrative
`Guidelines: Working with Transgender
`and Gender Nonconforming Students
`and Employees (2015) .................................
`
`Lyndal Bond, et al., Social and School
`Connectedness in Early Secondary
`School as Predictors of Late Teenage
`Substance Use, Mental Health, and
`Academic Outcomes, 40 J. of Adolesc.
`Health 357.e (2007) .......................................
`
`28
`
`17
`
`Stevie Borrello, Sexual Assault and
`Domestic Violence Organizations
`Debunk ‘Bathroom Predator Myth,’
`ABC News (Apr. 22, 2016) ........................... 22, 23
`
`Boulder Valley Sch. Dist., Guidelines
`Regarding the Support of Students and
`Staff who are Transgender and/or Gender
`Nonconforming (2016) .................................
`
`28
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`
`
`Wanda Cassidy & Margaret Jackson,
`The Need for Equality in Education: An
`Intersectionality Examination of
`Labeling and Zero Tolerance Practices,
`40 McGill J. Educ. 435 (2005) ...................... 20, 21
`
`Page
`
`Civil Rights Div., U.S. Dep’t of Justice &
`Office for Civil Rights, U.S. Dep’t of Educ.,
`Dear Colleague Letter, Transgender
`Students (May 13, 2016) ...............................
`
`27
`
`Civil Rights Div., U.S. Dep’t of Justice &
`Office for Civil Rights, U.S. Dep’t of Educ.,
`Dear Colleague Letter, Withdrawal of
`Title IX Guidance (Feb. 22, 2017) ............... 26, 27
`
`Chicago Public Schools, Guidelines
`Regarding the Support of Transgender
`and Gender Nonconforming Students
`(2016) .............................................................
`
`Cumberland School Department (RI),
`Policy Affecting Students Who Identify
`as Transgender or Gender Non-
`conforming (J-23) (2016) .............................
`
`District of Columbia Public Schools,
`Transgender and Gender-Nonconforming
`Policy Guidance (2015) ................................
`
`Econ. & Soc. Research Council, Diversity In
`Primary Schools Promotes Harmony,
`Study Finds, ScienceDaily (July 26, 2008)
`
`28
`
`28
`
`28
`
`20
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`
`
`Lisa C. Ehrich, Megan Kimber, Jan Millwater,
`& Neil Cranston, Ethical Dilemmas:
`A Model To Understand Teacher Practice,
`17 Teachers & Teaching: Theory &
`Practice 173 (2011) .......................................
`
`El Rancho Unified School District,
`Transgender and Gender-Nonconforming
`Students (AR 5145.3) (2014) .......................
`
`Page
`
`31
`
`28
`
`Robert Felner et al., Middle School
`Improvement and Reform: Development
`of a School-Level Assessment of Climate,
`Cultural Pluralism and School Safety,
`95 J. of Educ. Psych. 570 (2003) ................. 16, 17
`
`Daniel J. Flannery, Kelly L. Wester, &
`Mark I. Singer, Impact of Exposure to
`Violence in School on Child and
`Adolescent Mental Health and Behavior,
`32 J. Cmty. Psych. 559 (2004) ......................
`
`Phoebe Godfrey, Bayonets, Brainwashing,
`and Bathrooms: The Discourse of Race,
`Gender, and Sexuality in the
`Desegregation of Little Rock’s Central
`High, 62 Ark. Hist. Q. 42 (2003) ..................
`
`22
`
`25
`
`Jaime M. Grant et al., Nat’l Ctr. for
`Transgender Equality & Nat’l Gay and
`Lesbian Task Force, Injustice At Every
`Turn: A Report of the National
`Transgender Discrimination Survey
`(2011) ............................................................. 10, 24
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`
`
`Emily A. Greytak et al., GLSEN, Harsh
`Realities: The Experience of Transgender
`Youth in Our Nation’s Schools 10 (2009)
`
`Page
`
`9, 10, 13
`
`Mark L. Hatzenbuehler, Anna Bellatorre, and
`Peter Muennig, Anti-Gay Prejudice and
`All-Cause Mortality Among Heterosexuals
`in the United States, 104 Am. J. Pub.
`Health 332 (2014) .......................................... 31, 32
`
`Anne M. Hocutt, Effectiveness of Special
`Education: Is Placement the Critical
`Factor?, 6 Future of Children 77 (1996) ....
`
`Taica Hsu, How I Support LGBTQ+
`Students at My School, Am. Educator,
`Winter 2016-2017 ...........................................
`
`19
`
`15
`
`Sandy E. James et al., Nat’l Ctr. for
`Transgender Equality, The Report of the
`2015 U.S. Transgender Survey (2016) .. 9, 10, 11, 26
`
`Jaana Juvonen, Adrienne Nishina, & Sanda
`Graham, Ethnic Diversity and
`Perceptions of Safety in Urban Middle
`Schools, 17 Psych. Science 393 (2006) .......
`
`Richard Kahlenberg, From All Walks of
`Life: New Hope for School Integration,
`Am. Educ., Winter 2012-2013.......................
`
`Alex Kajitani, The #1 Factor That
`Determines A Toxic or Thriving School
`Culture, EdWeek (Apr. 27, 2016) ................
`
`20
`
`19
`
`15
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`
`
`Kansas City 33 School District (MO),
`Prohibition Against Discrimination,
`Harassment and Retaliation (Transgender
`and Gender Nonconforming Employee
`and Students) (2013) ....................................
`
`Page
`
`28
`
`Joseph G. Kosciw et al., GLSEN, 2007
`National School Climate Survey: The
`Experiences of Lesbian, Gay, Bisexual
`and Transgender Youth in Our Nation’s
`Schools (2008) .........................................
`
`9, 10, 13
`
`Yeonjin Lee, et al., Effects of Racial
`Prejudice on the Health of Communities,
`105 Am. J. Pub. Health 2349 (2015) ............
`
`Los Angeles Unified School District (CA),
`Transgender Students – Ensuring Equity
`and Nondiscrimination (2014) ....................
`
`Rigoberto Marquez & Ed Brockenbrough,
`Queer Youth v. the State of California:
`Interrogating Legal Discourses on the
`Rights of Queer Students of Color, 43
`Curriculum Inquiry 461 (2013) ....................
`
`Jenifer K. McGuire et al., School Climate
`for Transgender Youth: A Mixed Method
`Investigation of Student Experiences
`and School Responses, 39 J. Youth &
`Adolesc. 1175 (2010) ....................................
`
`Deana F. Morrow & Lori Messinger, Sexual
`Orientation and Gender Expression in
`Social Work Practice 53 (2006)...................
`
`32
`
`28
`
`21
`
`13
`
`21
`
`
`
`xii
`TABLE OF AUTHORITIES—Continued
`
`
`Greg Myre, U.S. Women Are the Biggest
`Winners at the Rio Olympics
`(Aug. 21, 2016) ..............................................
`
`Nat’l Ass’n of Sch. Psych. & Gender
`Spectrum, Gender Inclusive Schools:
`Policy, Law, and Practice (2016) .................
`
`Nat’l Coal. for Women and Girls in Educ.,
`Title IX at 40: Working to Ensure Gender
`Equity in Education (2012) ..........................
`
`Nat’l Educ. Ass’n, Legal Guidance on
`Transgender Students’ Rights (June 2016)
`
`Nat’l Educ. Ass’n, Research Brief:
`Importance of School Climate (2013) ........
`
`Nat’l Sch. Climate Ctr., School Climate
`Research Summary (Aug. 2012) .................
`
`Nat’l Sch. Climate Council, The School
`Climate Challenge (2007) ...........................
`
`Anthony Niedwiecki, Save Our Children:
`Overcoming the Narrative that Gays
`and Lesbians are Harmful to Children,
`21 Duke J. Gender L. & Pol’y 125 (2013) ...
`
`Office for Civil Rights, U.S. Dep’t of Educ.,
`Dear Colleague Letter, Harassment and
`Bullying (Oct. 26, 2010) ................................
`
`Office of Elementary and Secondary Educ.,
`Office of Safe and Healthy Students, U.S.
`
`Page
`
`18
`
`13
`
`18
`
`27
`
`15
`
`15
`
`15
`
`25
`
`29
`
`
`
`xiii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page
`
`Dep’t of Educ., Examples of Policies and
`Emerging Practices for Supporting
`Transgender Students (May 13, 2016) ........
`
`Open Soc’y Found., The Value of Inclusive
`Education (Oct. 2015) ..................................
`
`David Osher, et al., Improving Academic
`Achievement Through Improving School
`Climate and Student Connectedness
`(Apr. 14, 2009) ...............................................
`
`Suzanne Pharr, Homophobia: A Weapon of
`Sexism (1997) ................................................
`
`Lisa Rapaport, Racism Linked to Mortality
`for Both Blacks and Whites in U.S.,
`Reuters (Sept. 18, 2015) ...............................
`
`27
`
`18
`
`15
`
`20
`
`32
`
`Jeanne L. Reid & Sharon Lynn Kagan, A
`Better Start: Why Classroom Diversity
`Matters in Early Education (Apr. 2015) ..... 20, 22
`
`Ian Rivers, et al., Observing Bullying at
`School: The Mental Health Implications
`of Witness Status, 24 Sch. Psych. Q. 211
`(2009) .............................................................
`
`John Rosales, Positive School Cultures Thrive
`When Support Staff Included, NEA Today
`(Jan. 10, 2017) ...............................................
`
`22
`
`16
`
`Stephen T. Russell, Are School Policies
`Focused on Sexual Orientation and
`Gender Identity Associated with Less
`
`
`
`xiv
`TABLE OF AUTHORITIES—Continued
`
`
`
`Bullying? Teachers’ Perspectives, 54 J.
`Sch. Psych. 29 (2016) ...................................
`
`Stephen T. Russell et al., Safe Schools Policy
`for LGBTQ Students, 24 Soc. Policy
`Report, no. 4 (2010) ......................................
`
`Spencer J. Salend & Laurel M. Garrick
`Duhaney, The Impact of Inclusion on
`Students With and Without Disabilities
`and Their Educators, 20 Remedial &
`Special Educ. 114 (1999) .............................
`
`Doris A. Santoro, Good Teaching in Difficult
`Times: Demoralization in the Pursuit of
`Good Work, 118 Am. J. Educ. 1 (2011) .......
`
`Page
`
`17
`
`13
`
`18
`
`31
`
`Amy Stuart, Lauren Fox, & Diana Cordova-
`Cobo, Century Found., How Racially
`Diverse Schools and Classrooms Can
`Benefit All Students (Feb. 2016) ................. 19, 20
`
`Ruth Thompson-Miller et al., Jim Crow’s
`Legacy: The Lasting Impact of
`Segregation (2015) ........................................
`
`Adam Voight, Gregory Austin, & Thomas
`Hanson, A Climate for Academic
`Success (2013) ..............................................
`
`N. Eugence Walls, Sarah B. Kane, & Hope
`Wisneski, Gay-Straight Alliances and
`School Experiences of Sexual Minority
`Youth, 41 Youth & Society 307 (2010) ........
`
`25
`
`15
`
`17
`
`
`
`xv
`TABLE OF AUTHORITIES—Continued
`
`
`Laura J. Wernick, Alex Kulick, & Matthew
`Chin, Gender Identity Disparities in
`Bathroom Safety and Wellbeing Among
`High School Students (Working Paper,
`Jan. 7, 2017) ...................................................
`
`Kathleen Whitbread, What Does the
`Research Say About Inclusive Education?,
`Wrightslaw (1998-2016)................................
`
`Tobias Barrington Wolff, Civil Rights
`Reform and the Body, 6 Harv. L. & Pol’y
`Rev. 201 (2012) ..............................................
`
`Page
`
`11
`
`19
`
`25
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE AND
`INTRODUCTION
`
`This amici curiae brief is submitted, with consent
`of the parties,1 on behalf of the National Education
`Association (“NEA”); American Federation of Teach-
`ers, AFL-CIO (“AFT”); American Federation of State,
`County, and Municipal Employees (“AFSCME”); Na-
`tional Association of Secondary School Principals
`(“NASSP”); Service Employees International Union
`(“SEIU”); and School Social Work Association of
`America (“SSWAA”).
`
`NEA is the nation’s largest professional associa-
`tion representing approximately three million mem-
`bers, the vast majority of whom serve as educators,
`counselors, and education support professionals in
`our nation’s public schools. NEA has a deep and
`longstanding commitment to ensuring that every
`child has access to a high-quality public education
`regardless of background or zip code.
`
`AFT is a union of 1.6 million professionals that
`champions fairness; democracy; economic opportu-
`nity; and high-quality public education, healthcare
`and public services for students, their families, and
`our communities. AFT is committed to advancing
`these principles through community engagement,
`
`1 Petitioner filed a letter of blanket consent, and Respon-
`dent has given his express consent. Amici states that no par-
`ty’s counsel authored the brief in whole or in part; no party’s
`counsel contributed money that was intended to fund prepar-
`ing or submitting the brief; and no person—other than amici,
`its members, or its counsel—contributed money that was in-
`tended to fund preparing or submitting the brief.
`
`
`
`2
`organizing, collective bargaining, and political activ-
`ism, and especially through the work that AFT mem-
`bers do every day. At the core of AFT’s commitments
`to fairness and democracy is the belief that all stu-
`dents deserve to learn in safe and welcoming
`schools, regardless of the student’s gender identity
`or expression.
`
`AFSCME is a union comprised of a diverse group
`of people who share a common commitment to pub-
`lic service. AFSCME’s 1.6 million members include
`workers in both the public and private sectors, and
`over one hundred thousand members working in
`public schools. Together, AFSCME and its members
`advocate for prosperity and opportunity for working
`families across the nation through the efforts of its
`approximately 3,400 local unions and fifty-eight
`councils in forty-six states, the District of Columbia,
`and Puerto Rico.
`
`NASSP is the nation’s leading organization and na-
`tional voice for school leaders. NASSP has a long his-
`tory of promoting student equity and advocating for
`the needs of marginalized populations. As the found-
`er and home of the National Honor Society, NASSP
`encourages schools to empower students in their
`learning and amplify student voices.
`
`SEIU represents over 2 million working men and
`women, including public school bus drivers, janitors,
`paraprofessionals, and other school support person-
`nel; early learning and child care professionals; high-
`er education faculty members; and health care and
`property services workers. SEIU’s membership is
`among the most diverse in the labor movement. The
`union’s commitment to equal treatment and justice
`
`
`
`3
`for all, including transgender individuals, is reflected
`in its Mission Statement, which affirms that “we must
`not be divided by forces of discrimination based on
`gender, race, ethnicity, religion, age, physical ability,
`sexual orientation or immigration status.”
`
`SSWAA is the national professional organization
`for school social workers in school districts across
`the country. Its members work to enhance the social
`and emotional growth and academic outcomes of all
`students and to provide a positive climate for learn-
`ing. The organization supports school social work-
`ers in creating linkages among schools, families, and
`communities to address barriers to student success.
`SSWAA members serve the mental health needs of
`students and families through early identification,
`prevention, intervention, counseling and support.
`
`All told, amici represent education employees that
`interact with students throughout their school days—
`from the bus stop to after-school programs and ev-
`erything in between.
`
`Amici write to urge the Court to rule that Title IX
`and 34 C.F.R. § 106.33 proscribe transgender discrim-
`ination and protect the rights of transgender students
`to use sex-segregated facilities that correspond to
`their gender identity.
`
`Amici specifically write to make four points: (1)
`school-based discrimination against transgender
`students harms them profoundly, by stigmatizing
`them and denying them equal educational opportu-
`nities; (2) laws and school policies that respect and
`recognize transgender students promote a positive
`school environment that benefits all students and a
`
`
`
`4
`discriminatory regime harms and degrades the edu-
`cational environment for all students; (3) a clear rul-
`ing holding that policies that discriminate against
`transgender students are illegal would clarify the le-
`gal duties of schools and education employees, but
`a contrary or no ruling would create difficult situa-
`tions for education employees in the real world; and
`(4) compelling educators to enforce discriminatory
`policies like Petitioner’s harms educators them-
`selves by forcing them to knowingly harm or wit-
`ness the harming of their students.
`
`Amici have interviewed public school employees
`from across the country in preparation for this brief.
`Among these are high school and middle school
`teachers, as well as school counselors and psychol-
`ogists. Some of the interviewees work in schools
`that have adopted inclusive transgender student
`policies; others work in schools that have not. Col-
`lectively, they represent a variety of experiences
`with transgender educational policies (and access
`to sex-segregated facilities in particular) and as
`such have valuable perspectives to share with the
`Court about the needs of transgender students, and,
`indeed, all students, in our nation’s schools. This
`brief reflects both the specific experiences of these
`employees as well as the views of amici’s member-
`ships as a whole.
`
`SUMMARY OF ARGUMENT
`
`School-based discrimination harms transgender
`students by stigmatizing them and denying them
`equal education opportunities. This stigmatization is
`harmful and sends the message that transgender
`
`
`
`5
`students are not entitled to equal respect. Such poli-
`cies are defended by unjustifiable fear and disdain
`of transgender students—fear and disdain that in
`turn leads to and magnifies harassment, abuse, and
`even violence directed at transgender students. The
`harassment, violence, and abuse cause transgender
`students to quit and miss school, suffer deficient ed-
`ucational outcomes, and even commit suicide.
`
`All this denies equal educational opportunities to
`transgender students. In particular, denying access
`to sex-segregated facilities deprives transgender stu-
`dents the opportunity to fully participate in the
`school experience; such denials often result in trans-
`gender students avoiding using the bathroom alto-
`gether at school. Amici’s members see firsthand how
`bathroom avoidance in particular puts the health and
`safety of transgender students at risk: it leads trans-
`gender students to avoid meals and water (to avoid
`having to use the restroom), causing fatigue, concen-
`tration problems, and various types of urinary infec-
`tions and other health problems that are caused by
`failing to use the restroom.
`
`On the other hand, school policies that respect
`transgender students promote a positive school cli-
`mate for all students. When transgender students
`are welcomed equally into the school, their educa-
`tional and personal outcomes improve. And the
`welcoming and safe school climate fostered by
`trans-inclusive policies benefits all students. Safe
`and supportive schools, as educators know, are
`good for all students.
`
`A clear decision by the Court holding that Title IX
`proscribes transgender discrimination will clarify
`
`
`
`6
`not only the rights of transgender students, but also
`the duties of educators toward transgender students.
`A contrary ruling would only muddle the duties of
`educators.
`
`Finally, educators themselves are harmed by dis-
`criminatory polices like Petitioner’s. Compelling ed-
`ucators to enforce such policies harms educators
`professionally, personally, and emotionally. Educa-
`tors are, above all, advocates and protectors of their
`students. Compelling them to discriminate against
`and harm their students runs counter to everything
`about their personal and professional mission.
`
`ARGUMENT
`
`Transgender people cannot be wished away. Being
`transgender is not a fad. It is innate; not a choice.
`Transgender youth, in particular, face difficult obsta-
`cles. Being transgender can challenge their closest
`relationships, including with their parents and
`friends; it can subject them to harassment, bullying,
`and violence; and the social pressure to live accord-
`ing to their birth-assigned sex can be intense. Those
`profound challenges and pressures can lead to seri-
`ous psychosocial problems.
`
`Given this reality, most educators and education
`policy makers understand that schools work best
`when they fully welcome transgender students into
`the educational community. This means adopting
`policies that, among other things, allow transgen-
`der students to use sex-segregated facilities such as
`restrooms that are consistent with their gender
`identity.
`
`
`
`7
`Petitioner has chosen a different path. It has cho-
`sen to make Gavin’s2 life, and the lives of other trans-
`gender students, worse by stigmatizing them, ostra-
`cizing
`them, denying
`them equal educational
`opportunities, and pressuring them to deny their
`very existence. Amici file this brief to explain, based
`on their experience as professionals and employees
`in the public education system, the value of inclusive
`school policies that respect the identities of all stu-
`dents, including transgender students.
`
`I. School-based discrimination against
`transgender students harms them
`profoundly, by stigmatizing and denying
`them equal educational opportunities
`
`1. “The Constitution’s guarantee of equality must
`at the very least mean that a bare [ ] desire to harm
`a politically unpopular group cannot justify dispa-
`rate treatment of that group.” United States v. Wind-
`sor, 133 S. Ct. 2675, 2693 (2013) (internal quotations
`and citations omitted). The “Court has recognized
`that new insights and societal understandings can
`reveal unjustified inequality within our most funda-
`mental institutions that once passed unnoticed and
`unchallenged.” Obergefell v. Hodges, 135 S. Ct. 2584,
`2603 (2015).
`
`Policies such as Petitioner’s send a strong message
`to Gavin, other transgender students, and indeed all
`students and the broader school community that
`transgender students are not worthy of the school
`
`2 Since Gavin has identified himself in public media, Amici
`refer to him by his name here.
`
`
`
`8
`community’s equal respect, that they are outcasts
`and pariahs who ought to be feared by the larger
`community, and that their classmates must be pro-
`tected from them. The “necessary consequence” of
`such policies is to demean and stigmatize transgen-
`der students. See id. at 2602.
`
`Amici’s members bear witness to how policies like
`Petitioner’s reflect and promote hostility toward trans-
`gender youth. Much like occurred in Gavin’s case,
`transgender students are frequently allowed to par-
`ticipate equally in school activities by local educators,
`and they do so—often for some time—without inci-
`dent. But all too often, school officials—prodded by
`community members who have disdain and animosity
`for transgender individuals—decide to single the
`transgender student out. The school then denies the
`student access to facilities and programs that others
`have access to, telling the student that he is less than
`others. Scorn and abuse from students and the larger
`school community often follow. When this happens,
`transgender students forever “suffer the stigma of
`knowing” that in the eyes of their school district and
`community, they are “somehow lesser.” See id. at 2600.
`
`This type of stigmatization is deeply harmful to
`transgender students. Many of amici’s members
`work with transgender students grappling with their
`gender identity on the school bus, in the classroom,
`and in the lunch room. They see students struggle
`with accepting who they are; coming out to parents,
`teachers, and friends; enduring abuse and bullying;
`and also, overcoming all that, to thrive and prosper.
`
`For too many transgender students, school can
`be a dangerous and stigmatizing place. Policies like
`
`
`
`9
`Petitioner’s make what is already a difficult prob-
`lem only worse. Transgender students are often ha-
`rassed and bullied at school, and school policies
`that deny the very existence of transgender stu-
`dents makes that worse by legitimizing hostility
`against them.
`
`Ninety percent of transgender students have heard
`derogatory remarks about their gender identity and
`sexual orientation at school. Emily A. Greytak et al.,
`GLSEN, Harsh Realities: The Experience of Trans-
`gender Youth in Our Nation’s Schools 10 (2009),
`https://www.glsen.org/sites/default/files/Harsh%20
`Realities.pdf. Eighty-two percent of transgender stu-
`dents feel unsafe. Id. at 14. Over three-fourths of
`transgender students have been sexually harassed at
`school, id. at 21, and thirteen percent of transgender
`adults who were out or perceived as transgender as
`children or adolescents report that they were sexu-
`ally assaulted in school, Sandy E. James et al., Nat’l
`Ctr. for Transgender Equality, The Report of the 2015
`U.S. Transgender Survey 135 (2016). More than half
`of transgender students have been physically ha-
`rassed at school, and forty-four percent of transgen-
`der students report being physically assaulted at
`school. Greytak, supra, at 18–19. Only forty-six per-
`cent of harassed and bullied transgender students
`have reported their harassment and bullying to
`school officials, and only one-third of these students
`felt that the school responded effectively. Id. at 22.
`Transgender students from small towns and rural ar-
`eas face even higher levels of victimization than stu-
`dents in suburban or urban areas. Joseph G. Kosciw
`et al., GLSEN, 2007 National School Climate Survey:
`The Experiences of Lesbian, Gay, Bisexual and Trans-
`
`
`
`10
`gender Youth in Our Nation’s Schools 71–72 (2008),
`https://www.glsen.org/download/file/NDIyMg==.
`
`This pervasive bullying and harassment leads to
`negative educational outcomes. Seventeen percent
`of transgender students have reported that they have
`transferred or quit school because of harassment.
`James, supra, at 135; see also Jaime M. Grant et al.,
`Nat’l Ctr. for Transgender Equality & Nat’l Gay and
`Lesbian Task Force, Injustice At Every Turn: A Re-
`port of the National Transgender Discrimination Sur-
`vey 3 (2011), https://goo.gl/U9uhr9. Almost half of
`transgender students have missed school because
`they feel unsafe. Greytak, supra, at 14. Transgender
`students subject to gender-based verbal harassment
`have, on average, worse grades than their peers. Id.
`at 27. Those who face frequent harassment are less
`likely to pursue post-secondary education than those
`who are not harassed. Id. And transgender students
`are at a higher risk for suicide than their cisgender
`peers because of this harassment. Grant, supra, at 2;
`James, supra, at 132.
`
`2. One of our nation’s fundamental guarantees is
`that students have equal access to educational op-
`portunities regardless of gender differences. See,
`e.g., Title IX of the Education Amendments of 1972,
`20 U.S.C. § 1681 et seq.; United States v. Virginia,
`518 U.S. 515, 531 (1996).
`
`Tit
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