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Welcoming LGBTQ Students: What Washington School Districts Need to Know About New Legal Protections

By Tracy Miller and Elizabeth Rasmussen

In an atmosphere where school districts are often sued for discrimination, they must understand their legal obligations to those who are historically more vulnerable to bullying and discrimination, including lesbian, gay, bisexual, transgender, and genderqueer/questioning (“LGBTQ”) students. A school district’s failure to address an LGBTQ student’s complaints of discrimination or bullying can lead to significant liability: even a decade ago, jury verdicts were topping the one million dollar mark.

Washington law explicitly prohibits school districts from discriminating against LGBTQ students (and students who are perceived by others as LGBTQ) in enrollment and participation in the regular school day and all of a district’s programs and activities. RCW 28A.642.010. Under RCW 28A.300.285, all school districts must have policies and procedures that expressly prohibit harassment, intimidation and bullying, based on personal characteristics, including one’s sexual orientation and gender identity. Moreover, since 2008, the Washington Interscholastic Activities Association (WIAA) has enforced a policy that all students should have the opportunity to participate in sports consistent with their gender identity. Districts should review their existing policies and procedures regularly to ensure they meet these requirements.

The practical effect on a school district’s day-to-day operations of the addition of LGBTQ as a statutorily protected status can be complex and controversial. However, a District’s compliance with these new requirements can be broken down into three golden rules:

1. Respect the student’s self-proclaimed gender identity

This rule requires flexibility by school staff to allow all students to live fully in the gender with which they identify, including permitting students to use the name and pronoun, wear the clothing, use the restroom or locker room, and play on the sports team that corresponds to the gender identity they consistently assert at school. If other students are uncomfortable with an LGBTQ student’s use of a restroom or locker room, the student should offer the uncomfortable student an alternate restroom. If it is the LGBTQ student who is uncomfortable using a particular restroom, then the school may offer, but may not require, use of an alternative or designated restroom. The bottom line is: no student, LGBTQ or not, should ever be required to use a restroom that he or she is not comfortable using. The same concept applies on overnight field trips: LGBTQ students should be permitted to sleep in the cabins or rooms that correspond to the gender with which they identify; students who express discomfort with this should be offered an alternative arrangement. As far as names go, districts should always maintain a permanent student record that includes the individual’s legal name and the gender assigned at birth, but, unless required by law, should use the name, pronoun and gender designation that the student prefers and consistently asserts at school

2. Be consistent in how you provide services

LGBTQ students should be treated in exactly the same manner as non-LGBTQ students. For example, if non-LGBTQ students are allowed to date or to openly show affection, LGBTQ students must be given the same leeway. Dress codes should be gender-neutral and consistently enforced.

3. Be vigilant in protecting students from mistreatment by both staff and students

A significant portion of LGBTQ students assert the same allegation: “I repeatedly complained to my teacher I was being bullied, but the school did nothing.” School staff just never turn a blind eye to discrimination or bullying and should be trained to follow the District’s complaint procedures. Anyone who discriminates against or bullies a student must be disciplined promptly and effectively.

Copyright © 2015

Alerts are published by Karr Tuttle Campbell to present information on legal matters which may be deserving of clients’ immediate attention. The information contained in this Alert should not be regarded as legal advice or opinion, but it is attorney-client privileged.