In a worst-case scenario, the mother of a kindergarten student in the Decatur, Georgia Public Schools has claimed that a “gender fluid” student sexually assaulted her daughter while using the girls bathroom at the students’ elementary school. Decatur had implemented a policy permitting students to use the bathrooms of the gender with which they identify in accordance with Obama-era guidance from the United States Department of Education’s Office for Civil Rights [“OCR”].  Although the Trump administration has rolled back its predecessor’s application of Title IX to transgender student bathroom and locker room use, Decatur has continued the policy.

The girl’s mother claims that a biological male student who identifies as gender fluid followed her daughter into the girls bathroom and once there, pushed her up against a wall and forcibly touched her genitalia. The mother further claims that when she alerted school authorities, they were non-responsive, and that the biological male student remained in the school with her daughter, thereby compelling her to transfer the kindergartner to another school.  The family’s attorney then filed a complaint with OCR, alleging that the district had subjected the girl to gender discrimination by failing “to provide a prompt and equitable response to the Parent’s report that the Student had been sexually assaulted . . . by a male student who identified as gender fluid.”  The family further claimed that by permitting biological males to use girls’ bathrooms, the district had created a hostile environment, and that the district had retaliated against the parent when she reported what she characterized as “sexual harassment.”  Needless to say, the school district has denied the parent’s allegations.

OCR has given notice that it will investigate the parent’s complaint, including whether “the District implementation of the Policy contributed to creation of a hostile environment for the Student and other girls.” This signals an interesting new wrinkle in the ongoing debate as to whether students of one biological gender should be permitted access to bathrooms and locker rooms traditionally used by students of the other biological gender.  It shifts the focus from determining whether transgender or gender-fluid students are the subject of discrimination to considering whether allowing biological males entry into biological female bathrooms and locker rooms is discriminatory against biological females.  Because Decatur initiated this policy in response to OCR’s prior guidance, the parent’s allegation is essentially a claim that OCR fostered sexually hostile educational environments. Thus, it is remarkable that OCR would decide to investigate it, and it demonstrates how completely the United States Department of Education has reversed its position on transgender students’ bathroom use.

Were OCR to find in the victim’s favor, it would create precedent that could significantly alter the landscape of transgender students’ bathroom and locker room use. Under such a scenario, districts who were criticized as discriminating against transgender students by not allowing them to use the bathroom of the gender with which they identify could now be accused of creating a sexually hostile environment by allowing them to do so.  It would also be contrary to courts that have followed OCR’s prior guidance in finding that it is discriminatory not to permit bathroom access.  Would courts be as deferential to such an OCR interpretation as they were to OCR’s prior finding?

While those legal issues develop, the Decatur case should underscore the immediate importance of school districts taking steps to safeguard their students, regardless of their gender or gender identity. This includes ensuring that they have appropriate levels of supervision, something which is obviously easier to accomplish in locker rooms than it is in bathrooms. An alternative would be to permit students who are uncomfortable sharing a bathroom with classmates of the opposite biological gender to use a private bathroom.  Another consideration is reviewing the means by which districts determine the validity of a student’s professed gender identification, for one of the issues that has fueled opposition to such access is the relatively subjective basis upon which it is granted.

For example, Connecticut law requires that school districts permit students to use the bathroom and locker room of the gender with which they identify. To that end, Conn. Gen. Stat. §46a-51(21) provides, in part, that that determination can be based upon or “any . . . evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.” There is no objective test for validating a particular student’s attestations; rather, it comes down to a judgment call.  In the Decatur, Georgia case, the parent has asserted that the district used a similarly subjective rubric in allowing access to the bathrooms.  Those opposed to bathroom access such as was permitted in Decatur and is mandated in Connecticut might argue that this subjectivity made it almost inevitable that an assault such as is alleged in this matter would occur.  At the same time, this appears to be a fairly isolated incident, and while that obviously does not lessen the alleged victim’s trauma, proponents of access could argue that the appropriateness of a rule should not be determined by a single exception.

While schools in states that permit bathroom access cannot make it unduly burdensome for students to establish their gender identification, it should also not be a cursory process. Keep in mind that even Connecticut’s quoted catch-all provision references “any . . . evidence” (emphasis added).  Granted, a student’s assertion may constitute “evidence,” but that is not self-authenticating; rather, a district can still weigh it and determine whether it is sufficient.  As in most things legal, the guiding principle when considering the rights of the transgender student and the concerns of other students is reasonableness – did the district act reasonably in assessing a student’s statement of gender identification?  A district cannot guarantee the correct outcome, but it can at least establish that it took reasonable steps to arrive at it.