Gender Identity at School: Legal Issues

Many LGBTQ+ students face gender identity issues in the school setting. They often struggle with binary gender stereotypes in education programs, school district policies, and extracurricular activities. In some cases, these struggles rise to the level of discrimination.

In this article, we explore some recurring gender identity issues in K-12 schools and institutions of higher education. Then, we'll explain how these issues intersect with state and federal anti-discrimination laws.

Before reviewing some of these challenges, let's first make sure we understand what gender identity means.

Gender Identity

Gender identity refers to one's perception of their gender. This may or may not correspond to their sex assigned at birth. It's a deeply personal and innate feeling of being male, female, a blend of both, or neither.

Gender identity is different from biological sex. Sex is usually assigned at birth based on physical characteristics. But gender identity exists on a spectrum and isn't limited to male or female.

Only an individual can determine their own gender identity. It cannot be imposed by others.

One may express their gender identity through behavior, dress, mannerisms, and other external characteristics. But it's distinct from these and other forms of gender expression.

LGBTQ+ Students

Gender identity issues at school typically affect LGBTQ+ students. This inclusive acronym stands for:

• Lesbian
• Gay
• Bisexual
• Transgender
• Queer/Questioning

“Queer" can refer to anyone who isn't heterosexual or cisgender. It can also be used as a personal identity. “Questioning" refers to someone exploring their sexual orientation or gender identity.

The "+" symbol is a catch-all for other sexual orientations, gender identities, and expressions.

Which Students Face Gender Identity Issues?

Students facing gender identity issues at school come from a variety of backgrounds and experiences. They can include:

• Transgender students: Those whose gender identity differs from the sex they were assigned at birth
• Nonbinary students: Students who don't identify as just male or female
• Gender-nonconforming students: Those whose gender expression doesn't align with societal expectations for their perceived gender
• Gender-fluid students: Students whose gender identity may change over time
• Questioning students: Those who are exploring or unsure about their gender identity

These students are no different from others in that they all need supportive environments to learn. Still, they commonly face issues in the educational setting.

Gender Identity Issues at School

Gender identity issues in schools can manifest in various ways. This can be particularly challenging when the school system doesn't recognize all students' gender identities.

These issues may include:

• Misgendering: Referring to students by the wrong pronouns or gender
• Lack of inclusive facilities: Forcing students to use facilities like restrooms and locker rooms that don't align with their gender identity
• Participation in gender-segregated activities: Labeling student activities, teams, and clubs as male or female, often forcing students into groups that don't match their gender identity
• Inadequate support systems: Leaving students without adequate resources or school staff/counselors not trained to support students with gender identity issues
• Restrictive dress codes: Requiring students to wear attire that doesn't align with their gender identity
• Identity documentation: Limiting options on school records and identification documents to male and female
• Curriculum representation: Excluding LGBTQ+ topics from sex/health education and contributions of LGBTQ+ figures from lessons
• Lack of inclusive language: Not using gender-neutral terms or language that acknowledges and respects diverse gender identities

These issues can be distressing and invalidating for students whose gender identity isn't recognized. Schools can begin to address them with practices that respect and affirm diverse gender identities.

Gender Diversity

Gender diversity refers to the recognition and inclusion of a wide range of gender identities and expressions. It goes beyond the traditional binary understanding of male and female. It acknowledges that gender is a spectrum. And it respects that people can identify and express their gender in different ways.

Gender diversity is critical in the educational environment. By embracing it, schools can create a more inclusive and supportive environment. This can take many forms.

It may include:

• Inclusive curriculum that integrates diverse gender identities and experiences into health, social studies, and other classes
• Supportive policies implementing practices that protect students from discrimination/harassment/bullying based on gender identity
• Gender-neutral facilities, including restrooms and changing facilities
• Professional development/training for educators and staff on gender diversity and inclusive practices, like using students' preferred pronouns
• Support services offering counseling and groups for students to discuss their gender-diverse experiences and receive support
• Parental and community engagement in discussions about gender diversity and inclusivity

Measures like these can help all students feel valued and respected. Without them, many wonder if the issues they face are discriminatory. The answer depends on federal and state law.

Federal Discrimination Laws

Discrimination involves treating someone unfavorably because of one or more protected characteristics. Whether a student's gender identity counts as a protected characteristic depends on federal and state law.

Protected characteristics of students under federal law include:

• Race
• Color
• National origin
• Sex
• Religion
• Disability
• Age

Many state laws include additional protected categories. Under certain laws, sex discrimination includes gender identity discrimination.

Title IX

Title IX is a federal civil rights law enforced by the U.S. Department of Education (DOE). It applies to most public and private schools at all levels.

The law prohibits sex-based discrimination in education programs and activities. Whether this includes gender identity discrimination has varied with presidential administrations.

In 2024, the Biden administration's DOE issued new regulations. They said Title IX bans discrimination based on gender identity (and sexual orientation). But a federal court judge struck them down in January 2025.

As such, Title IX protection against gender identity discrimination remains unclear.

Equal Access Act

This federal civil rights law applies to public high schools. It says that if a school allows any extracurricular student groups, it must allow all types.

So, these schools can't deny high school student groups equal access because of their political, philosophical, or other viewpoints. This protects LGBTQ+ student clubs at these schools.

First Amendment

We usually think of the First Amendment to the Constitution as protecting speech or religion. But it also protects expression. And as the Supreme Court famously clarified in 1969, students don't give up these rights at school.

So, the First Amendment protects public school students' rights to express their gender identity, such as through clothing or speech. However, schools can restrict speech or expression that disrupts school operations.

Fourteenth Amendment

The Fourteenth Amendment protects fundamental rights and requires equal treatment of people under the law. Courts have used it to rule against discrimination against LGBTQ+ students at public schools.

State Laws Banning Gender Identity Discrimination

States also have anti-discrimination laws. Many expand on federal protections for students. We discuss a few examples below.

California

The California Student Safety and Violence Prevention Act explicitly protects students from gender identity discrimination by:

• Banning discrimination, harassment, intimidation, and bullying based on actual or perceived gender identity
• Requiring school policies and procedures to prevent/address such discrimination
• Mandating that schools allow students to take part in sex-segregated school programs and activities, including athletic teams, consistent with their gender identity

The law applies to all public schools in the state, from elementary school through college.

Massachusetts

Similarly, the Massachusetts Gender Identity Anti-Discrimination Act prohibits gender identity discrimination against students. It also:

• Requires schools to accept a student's asserted gender identity
• Mandates that students be allowed to access facilities and take part in programs consistent with their gender identity

This law applies to all Massachusetts public pre-K-12 schools.

Other State Laws

Other states take a different approach to students' gender identity issues.

For example, the Alabama Vulnerable Child Compassion and Protection Act requires schools to inform parents if their child requests to be called by a different name or pronoun. The law applies to the state's K-12 public schools.

Florida's Parental Rights in Education Act has similar requirements. In addition, it says schools can't make employees or students use pronouns that don't correspond to a person's biological sex. The law applies to public K-12 institutions.

Facing Gender Identity Issues?

How you tackle issues related to gender identity at school will depend heavily on the specific circumstances. Federal law, state law, and school policy will play critical roles in identifying your options.

If you or your child is facing gender identity issues at school, it's important to seek help. Many schools have LGBTQ+ support groups and student organizations that can provide community and advocacy. This type of environment might provide you with some much-needed comfort at a difficult time. You may also find that other students at the school have experienced similar issues.

You can also check out the Human Rights Campaign, a massive organization dedicated to LGBTQ+ advocacy. Its Youth Well-Being Program provides resources for students and the adults in their lives to ensure they receive the support they need.

Your Legal Options

Your school may have policies embracing gender diversity. And applicable law may protect against the type of treatment you're experiencing.

However, these protective mechanisms are seldom perfectly enforced, and schools may not follow the laws/policies correctly. That's why it's critical for students and parents to understand the rights and legal obligations involved.

You'll likely have choices for addressing violations of school policy and applicable law. In addition to grievance procedures, legal action may be warranted. This could mean filing a complaint with the state/federal department of education or bringing a lawsuit.

Getting Legal Help

Navigating this complex and evolving body of law can be tricky. It frequently changes and can be subject to interpretation.

A qualified civil rights attorney can help you decide how to proceed. You can confidentially share the specifics of your situation, and they will apply federal/state law and help you understand possible courses of action.

These issues can be extremely challenging. But connecting with a trusted advisor doesn't have to be.

Findlaw's dedicated directory of civil rights attorneys can get you started. Just click on the state where your school is located. This will take you straight to contact information for local attorneys who can assist. You can also narrow your search by city.

A compassionate advocate can be your most important ally on this journey. You don't have to go it alone.