Outright Youth Write to Public Officials

Agency of Education Best Practices FAQ

Thriving in school can be challenging for queer and trans youth when their identities are not acknowledged by their administration and teachers.  Often this happens because administrators and teachers feel they don’t know what is best, or even allowable.

In February 2017, the Vermont Agency of Education issued “Continuing Best Practices for Schools Regarding Transgender and Gender Nonconforming Students.”  This comprehensive document provides background and rationales for the Agency’s best practices.  It is an extensive document, and full of information that can be confusing.  Don’t worry; Outright’s got you!

We have compiled the answers to the 20 most frequently asked questions about best practices for queer and trans students in Vermont schools.  Questions with asterisks are not part of the Agency’s “Best Practices” document but are frequently asked in the same context.  Here they are:

“Students should be addressed by school staff by the name and pronoun corresponding to their gender identity. Students are not required to obtain a court ordered name and/or gender change or to change their pupil personnel records as a prerequisite to being addressed by the name and pronoun that corresponds to their gender identity.” (AoE Best Practices p7)  This guidance is consistent with recommendations from the ACLU as to schools’ use of pronouns for students. (ACLU “Know Your Rights” p5)

Students may prefer nontraditional pronouns.  In particular, “they” (in the singular) has been gaining mainstream acceptance, including by the Associated Press, the Chicago Manual of Style, and The Economist Magazine.  But students may prefer other pronouns.  Wiktionary.org offers a list of those found in public use and Minus18.AU.org offers a youth-created resource with examples of pronoun usage.

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Yes. Students should be addressed by school staff by the name and pronoun corresponding to their gender identity. Students are not required to obtain a court ordered name and/or gender change or to change their pupil personnel records as a prerequisite to being addressed by the name and pronoun that corresponds to their gender identity.” (AoE Best Practices p7)

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No. Vermont “AoE Best Practices” are clear: “Students should be addressed by school staff by the name and pronoun corresponding to their gender identity.  Students are not required to obtain a court ordered name and/or gender change or to change their pupil personnel records as a prerequisite to being addressed by the name and pronoun that corresponds to their gender identity.” (AoE Best Practices p7)

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No.  “Students should be addressed by school staff by the name and pronoun corresponding to their gender identity.” (AoE Best Practices p7)   “’Gender Identity’ means an individual’s actual or perceived gender identity … regardless of the individual’s assigned sex at birth. (AoE Best Practices p3 citing  1 V.S.A. §144)  “An individual [may] begin to live and identify as the sex consistent with [their] gender identity, with or without medical treatments or procedures.” (AoE Best Practices p3)

Neither Vermont Statutes nor Vermont “AoE Best Practices” require a doctor’s diagnosis in order for students to be identified consistently with their gender identity.  This is consistent with other policies and best practices, including those of the Los Angeles Unified School District and the Anchorage School District administrative guidelines, as cited by the U.S. Department of Education’s May 2016 “Examples of Policies and Emerging Practices for Supporting Transgender Students”. (Note that this is not the contested guidance that was withdrawn, but a collection of policies and practices from around the U.S.)

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No.  It is not always safe for students to express their gender identity or preferred name at home.  “Schools should work closely with the student and family, if appropriate, in devising an appropriate plan regarding the confidentiality of the student’s transgender or gender nonconforming status that works for both the student and the school.” (AoE Best Practices p5) [Emphasis added]

It may not always be appropriate to involve the family in the development of this plan regarding confidentiality;  the plan is designed to work for the student and the school, not necessarily for the family.  Some students may not feel safe if their gender information is shared with their families, so the approach is to be student-centered and the student should be involved in developing the plan for what information is shared, while recognizing “a parent’s right to information.” (AoE Best Practices p5)

This may require the school to maintain two sets of records. The student may request that all correspondence between the school and the home use only the student’s legal name and assigned sex. School personnel should discuss with the student first before discussing the student’s gender identity with the student’s parent or guardian and how written communication with the parent or guardian will refer to the student (preferred/chosen name and/or preferred pronouns or legal name).” (AoE Best Practices p11)

Read More:

  • AoE Best Practices – “Continuing Best Practices for Schools Regarding Transgender and Gender Nonconforming Students” – http://education.vermont.gov/sites/aoe/files/documents/edu-best-practices-transgender-and-gnc.pdf
  • Keen, Lisa, Out Law: What LGBT Youth Should Know about Their Legal Rights, p33 Beacon Press Boston (2007) citing “United States Court of Appeals for the Third Circuit No. 99-1768 Madonna Sterling v. Borough Of Minersville et al” http://www2.ca3.uscourts.gov/opinarch/991768.txt The court specifically cited Powell v. Scrivner, 175 F .3d 107, 111 (2d Cir. 1999) (“the excruciatingly private and intimate nature of transsexualism [sic], for persons who wish to preserve privacy in the matter, is really beyond debate”)
Yes.  “…school personnel should not disclose information that may reveal a student’s transgender or gender nonconforming status.” (AoE Best Practices p5)  A student’s gender identity is protected under their FERPA (and other) privacy rights. (AoE Best Practices p5) However, Vermont policy is sensitive to the complications involved.  “Schools should work closely with the student and family, if appropriate, in devising an appropriate plan regarding the confidentiality of the student’s transgender or gender nonconforming status that works for both the student and the school.” (AoE Best Practices p5) [Emphasis added]

Note that it may not always be appropriate to involve the family, and the plan is designed to work for the student and the school, not necessarily for the family.  Some students may not feel safe if their gender information is shared with their families, so the approach is to be student-centered and the student should be involved in developing the plan for what information is shared, while recognizing “a parent’s right to information.” (AoE Best Practices p5)

“In order for a school to provide information legally required to be shared with parents, it may require the school to maintain two sets of records. The student may request that all correspondence between the school and the home use only the student’s legal name and assigned sex. School personnel should discuss with the student first before discussing the student’s gender identity with the student’s parent or guardian and how written communication with the parent or guardian will refer to the student (preferred/chosen name and/or preferred pronouns or legal name).” (AoE Best Practices p11)

Read More:

  • AoE Best Practices – “Continuing Best Practices for Schools Regarding Transgender and Gender Nonconforming Students” http://education.vermont.gov/sites/aoe/files/documents/edu-best-practices-transgender-and-gnc.pdf
  • Keen, Lisa, Out Law: What LGBT Youth Should Know about Their Legal Rights, p33 Beacon Press Boston (2007) citing “United States Court of Appeals for the Third Circuit No. 99-1768 Madonna Sterling v. Borough Of Minersville et al” http://www2.ca3.uscourts.gov/opinarch/ 991768.txt The court specifically cited Powell v. Scrivner, 175 F .3d 107, 111 (2d Cir. 1999) (“the excruciatingly private and intimate nature of transsexualism [sic], for persons who wish to preserve privacy in the matter, is really beyond debate”)
Yes.  “To the extent that the school is not legally required to use a student’s legal name or sex assigned at birth on school records and other documents, the school should use the name and gender preferred by the student. This may require the school to maintain two sets of records (one with the student’s legal name and sex assigned at birth kept separate from routine school records) to avoid inadvertent disclosure.” (AoE Best Practices p6, emphasis added)

To the extent that the school is legally required to use a student’s legal name or sex assigned at birth on school record or other documents, FERPA specifies that “students who are 18 and older or parents of students under 18 may request a change to the student’s name and gender in educational records based on a claim that such records are incorrect, misleading or a violation of privacy. A student’s permanent pupil record should be changed to reflect a change in legal name or gender only upon receipt of documentation that such legal name and/or gender have been changed pursuant to applicable law. For a legal change of gender, the student must provide a birth certificate indicating the student’s legal gender. 18 V.S.A. § 5112 (2011).” (AoE Best Practices p6)

“In order for a school to provide information legally required to be shared with parents, it may require the school to maintain two sets of records. The student may request that all correspondence between the school and the home use only the student’s legal name and assigned sex. School personnel should discuss with the student first before discussing the student’s gender identity with the student’s parent or guardian and how written communication with the parent or guardian will refer to the student (preferred/chosen name and/or preferred pronouns or legal name).” (AoE Best Practices p11)

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“Every effort should be made to immediately update student education records (for example, attendance records, report cards, Individualized Education Programs, etc.) with the student’s chosen/preferred name and appropriate gender markers and not circulate records with the student’s birth name and assigned sex.” (AoE Best Practices p7)

“For those students who undergo gender transition while attending the same school, it is important to develop a plan for initiating use of the preferred name and pronouns consistent with the student’s gender identity. The plan can also include when and how this is communicated to students and their parents, staff and other individuals within the school community (i.e., substitute teachers, bus drivers, athletic coaches, etc.).” (AoE Best Practices p7)  Also see the answer to the question 5 “Does a school require a student’s consent in order to reveal that student’s gender identity?” regarding notification of parents regarding a student’s gender identity.

“If a student has previously been known at school or in school records by [their] birth name, the school administrator should direct school personnel to use the student’s chosen/preferred name and not the student’s birth name.” (AoE Best Practices p7)

For example, Vermont “AoE Best Practices” cite a Massachusetts instance “where a biological male came to school after April vacation as a girl, the school principal and guidance counselor, in collaboration with the student and her parents, developed a plan for communicating information regarding the student’s transition to staff, parents and students. The plan included who was going to say what to whom, and when the communication would take place.” (AoE Best Practices p11)

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Yes.  Vermont “AoE Best Practices” state: “Student ID cards should be issued in the name that reflects a student’s gender identity.” (AoE Best Practices p8)  Throughout the Agency of Education guidelines, students are affirmatively “not required to obtain a court ordered name and/or gender change” (AoE Best Practices p7) to be recognized by the gender corresponding to their gender identity.

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Everyone.  Most presentations on school safety begin with the admonition that “School Safety is Everyone’s Responsibility.”  That is no less true for transgender students than for any other member of the school community.  Procedurally, Vermont’s anti-harassment and anti-bullying statute (16 V.S.A. § 570a and c) requires each district to designate “two or more people at each school campus to receive complaints.”  In addition, Vermont Statutes on discrimination and public accommodation specify that discrimination based on gender identity is illegal.  (9 V.S.A. § 4502 (a)

The Vermont Agency of Education has issued sample policies and procedures that may be useful for districts as they adopt policies and procedures that keep students safe and conform to Vermont law (see below).

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Yes.  The Vermont Attorney General has stated that Act 41 (signed May 2007) “prohibits gender identity discrimination” and that “those rights survive any decision by the [2017 Federal] administration.” (Office of the Attorney General of Vermont, Feb. 23, 2017)  Vermont “AoE Best Practices” states that “harassing a student for failing to conform to stereotypical masculine or feminine notions or behaviors constitutes sex discrimination.  Complaints alleging discrimination or harassment … should be handled in accordance with the [AoE’s] Policy on the Prevention of Harassment, Hazing and Bullying of Students” (AoE Best Practices p4)

Under Vermont state law, “School harassment” is specifically defined to include “incidents … motivated by a student’s … actual or perceived … sex, sexual orientation, gender identity …,” and further identifies “sex, sexual orientation, gender identity” as characteristics “of protected categories.” (16 V.S.A. § 11 (26)), (16 V.S.A. § 178).

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Yes.  “In Tinker v. Des Moines, over 40 years ago, the U.S. Supreme Court ruled that students don’t ‘shed their constitutional rights to freedom of speech at the schoolhouse gate’.” (ACLU “Know Your Rights at School”) This includes the right to express opinions that may be unpopular with staff or other students, so long as that expression is not disruptive.  Where speech (even “symbolic speech” like a slogan on a T-shirt) is allowed, then speech endorsing LGBTQ rights is also allowed.

“Disruptive speech” is defined as speech that “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” (Tinker v. Des Moines School District, heading II, ¶5) Obviously, there is some room for interpretation here.  But in general, there should be a clear set of rules that is applied to all speech, not just the speech at issue in a particular case.

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Yes.  The “Equal Access Act” passed in 1984 specifies that “It shall be unlawful for any public secondary school … to deny equal access … [to] any students who wish to conduct a meeting … on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” (20 U.S. Code § 4071)  The act has been found by the courts to allow QSA’s or GSA’s and similar groups if they meet the same criteria as other student groups. (East High Gay Straight Alliance v. Board of Education of Salt Lake City School District)

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Yes.  A student’s right to wear clothing consistent with their gender identity was tested in “Logan v. Gary Community School Corporation.”  Logan argued that choice of clothing was a “First Amendment right to freedom of speech, symbolic action and expressive conduct,” and the Gary Community School Corporation settled.

 

Other state court cases have upheld students’ right to wear clothing consistent with their gender identity, affirming the argument that failing to do so “would be as injurious to her psychiatric health as requiring a psychologically masculine boy to wear a dress to school.” (Doe v. Yunits, 15 Mass.L.Rptr. 278 at 6 (2001))

 

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Yes.  Courts have repeatedly ruled that who one brings to school social events and how one dresses are matters of free speech that schools cannot dictate.  “In Fricke v. Lynch, a federal court ruled that any policy excluding same-sex couples from proms or school dances violates the right to free expression guaranteed by the 1st Amendment to the U.S. Constitution.”

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Yes.  “Students should be permitted to participate in physical education and sports in accordance with the student’s gender identity.”  (AoE Best Practices p8)  In the case of activities governed by the Vermont Principals Association, their policy states, “All students should have the opportunity to participate in Vermont Principals’ Association activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.” (Vt. Principal’s Association Policies Art 2 §6 §§ Policy/Procedure)

 The VPA policies assume that students and school personnel will come to agreement, but if they cannot, VPA policies define a procedure to determine eligibility.  Criteria for gender identification include “[d]ocumentation of student’s consistent gender identification (e.g., affirmed written statements from student and/or parent/guardian and /or health care provider).” (Vt. Principal’s Association Policies Art 2 §6 §§ Policy/Procedure  ¶ 3b) Specific medical treatments or affirmations of medical condition by a doctor are not required. Should the student be denied, they may appeal to the Executive Director of the VPA. (Vt. Principal’s Association Policies Art 2 §6 §§ Policy/Procedure  ¶ 5)

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Yes.  “A transgender student should not be required to use a locker room or restroom that conflicts with the student’s gender identity.” (AoE Best Practices p8)  “Any student may desire additional privacy in using a bathroom or locker room. A transgender or gender nonconforming student may request additional privacy within a locker room or other changing room. Similarly, other students may request additional privacy in changing clothes in a locker room or changing area used by a transgender or gender nonconforming student. …  Schools may provide a single stall with a door or curtain to provide privacy for any student who desires extra privacy within a common locker room or changing area (or bathroom).” (AoE Best Practices p12)

In other words, any student who is concerned for their own privacy may request additional privacy, which may be accommodated by access to a “single-stall” bathroom or a curtain.  But no student should be required to use a facility more private than that used by other students participating in the same activity.  This applies to bathrooms, changing areas, and locker rooms.

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No.  “Schools may provide a single stall with a door or curtain to provide privacy for any student who desires extra privacy within a common locker room or changing area (or bathroom).” (AoE Best Practices p12 – emphasis added)

Any student who is concerned for their own privacy may request additional privacy, which may be accommodated by access to a “single-stall” bathroom or a curtain.  But no student should be required to use a facility more private than that used by other students participating in the same activity.  This applies to bathrooms, changing areas, and locker rooms.

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Students should be treated in accordance with their gender identity.  “…where students are separated by gender in school activities (i.e. overnight field trips), students should be permitted to participate in accordance with their gender identity. (AoE Best Practices p8)

The National Association of Secondary School Principals has similar guidance: “Transgender students should have the opportunity to room with peers that match their gender identity, and schools should try to pair the transgender student with peers with whom there is a mutual level of comfort. The school should also honor requests for alternative sleeping arrangements if that is the transgender student’s preference.”

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This document intends to be a clarification and restatement of the Vermont Agency of Education’s “Continuing Best Practices for Schools Regarding Transgender and Gender Nonconforming Students” as issued February 23, 2017.  Clarifications and further questions of interpretation regarding that document should be addressed to the Agency’s staff attorney at clare.oshaughnessy@vermont.gov.

Additional questions marked by asterisks (*) are answered by summaries of and links to other authoritative sources.

Outright Vermont’s Director of Education may be reached at

241 N. Winooski Ave.
Burlington, VT 05401
802-865-9677

Education@outrightVT.org
http://www.OutrightVT.org