State-Level Legal Interpretations

State law (§§368-1, 489-2, and 489-3, Hawai`i Revised Statutes) which protects individuals from discrimination based on gender identity or expression in public accommodations, employment, housing, and access to services receiving state financial assistance.

• Title 8, Chapter 19 of the Hawai`i Administrative Rules which includes a prohibition against making verbal or non-verbal expressions that cause others to feel uncomfortable, pressured, threatened, or in danger because of reasons that include gender identity and expression.

In addition, the Hawai`i Department of Education’s mission is to develop the academic achievement, character, and social-emotional well-being of every child. The State needs to support all students in the development of their identities. Several Board of Education policies support this mission, including: • Policy E-3, Na Hopena A‘o: “The DOE works together as a system that includes everyone in the broader community to develop competencies that strengthen a sense of belonging, responsibility, excellence, aloha, total wellbeing and Hawaii.”

 • Policy 101.1, Student Code of Conduct: “Students are expected to be honest, behave with dignity and treat others with respect and courtesy. Behavior of the individual should not interfere with the rights of others. This includes the use of appropriate language, actions and attire. Students are expected not to harass others through any means.”

• Policy 101.6, Comprehensive Student Support System: “The BOE recognizes the importance of providing effective instruction in a safe, positive, caring and supportive learning environment…The DOE shall provide a comprehensive student support system framework to support the implementation, with fidelity of […] appropriate student support through an array of services.”

• Policy 106.5, Focus on Students: “The focus on the educational program for the public schools of Hawaii shall focus on the growth and development of each student.”

• Policy 305.10, Anti-Harassment, Anti-Bullying, and Anti-Discrimination Against Students by Employees: “The DOE strictly prohibits any form of harassment and/or bullying based on the following: gender identity and expression, socio economic status, physical appearance and characteristics and sexual orientation.” “A student shall not be excluded from participation in, be denied the benefits of or otherwise be subjected to harassment, bullying and discrimination under any program, services or activity of the DOE.”

Title 8, Chapter 6 of the Hawai`i Administrative Rules governs the confidentiality of personal records, including those of students.

• Title 8, Chapter 34 of the Hawai`i Administrative Rules governs the protection of the educational rights and privacy of students and parents.

• BOE Policy 500.21, Student Information and Confidential Records: “Information relating to individual students or former students in the public schools shall not be divulged or released by the Department of Education (Department) personnel, except as authorized by the individual student, parent, or guardian, permitted by the Department, or specified by law. Reports designated as “confidential” contain information of an intimate and personal nature, and shall be safeguarded and respected in accordance with professional ethics. Such reports shall not be placed in files of general accessibility. […] All public schools shall maintain individual files of permanent student records as required by the Department or by law.”

The Commission’s Education Rule, which is a joint rule enacted with the Department of Education, has not been updated in any significant way in the past 15 years. Even the most recent amendment, enacted in 2000, did not amend the rule to include all of the then-protected classes which had been added to the MHRA: while race, national origin, and disability had been added to the education provisions in the late 1980s, those classes are not mentioned in our current rule. Ten years ago, the education provisions of the MHRA were amended to make discrimination on the basis of sexual orientation (which includes gender identity and gender expression) unlawful. Soon thereafter, the Commission applied the sexual orientation protections in a claim by a transgender student’s right to use the bathroom corresponding with her gender identity. The case became the subject of long-running litigation around the application of the MHRA’s sexual orientation provisions in education. Because of the litigation, the Commission held off on rulemaking. The litigation was finally concluded about two years ago. See Doe v. RSU 26, 2014 ME 11. In the wake of Doe, we received a number of inquiries about the rights of students under the MHRA, specifically with regard to sexual orientation issues.

While we would like to propose changes to the current Education Rule, that avenue is unavailable at the moment. The public is in need of guidance as to the application of the education provisions of the MHRA generally, and how the Commission interprets the Act with regard to sexual orientation discrimination in particular. Those issues are addressed below.

Maryland Education Code, Annotated Title 7 Public Schools, Subtitle 4, Health and Safety of Students §7-424 Requires reporting incidents of harassment or intimidation against students. Defines bullying, harassment, or intimidation as intentional conduct, including verbal, physical or written, or an intentional electronic communication that creates a hostile educational environment by substantially interfering with a student’s educational benefits, opportunities, or performance, or with a student’s physical or psychological well-being and is: (1) motivated by an actual or perceived personal characteristic including race, national origin, marital status, sex, sexual orientation, gender identity, religion, ancestry, physical attributes, socioeconomic status, familial status, or physical or mental ability or disability; or (2) threatening or seriously intimidating. The incident must: (1) occur on school property, at a school activity or event, or on a school bus; or (2) substantially disrupt the orderly operation of a school.

10/27/2015 Page 17 Code of Maryland Regulations, COMAR 13.A.01.04.03 Public School Standards, School Safety All students in Maryland’s public schools, without exception and regardless of race, ethnicity, religion, gender, sexual orientation, language, socioeconomic status, age or disability, have the right to education environments that are safe, appropriate for academic achievement, and free from any form of harassment. Md. Code Ann., Health-Gen §4-211. Vital Records-New Certificates of Birth-Sex Change or Diagnosis of an Intersex Condition. As of October 1, 2015 individuals can update the sex listed on their birth certificate by submitting a letter to Maryland Vital Records from a licensed health care practitioner stating that the individual has had appropriate clinical treatment for gender transition or has been diagnosed with an intersex condition.

An Act Relative to Gender Identity (Chapter 199 of the Acts of 2011),1 which became effective on July 1, 2012, amended several Massachusetts statutes prohibiting discrimination on the basis of specified categories, to include discrimination on the basis of gender identity. Among the statutes amended is G.L. c. 76, § 5, prohibiting discrimination on the basis of gender identity against students who enroll in or attend the public schools. G.L. c. 76, §5 now reads as follows: Every person shall have a right to attend the public schools of the town where he actually resides, subject to the following section. No school committee is required to enroll a person who does not actually reside in the town unless said enrollment is authorized by law or by the school committee. Any person who violates or assists in the violation of this provision may be required to remit full restitution to the town of the improperly-attended public schools. No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation. (Emphasis added)

In June 2012, the Massachusetts Board of Elementary and Secondary Education (Board) adopted revised Access to Equal Education Opportunity Regulations, 603 CMR 26.00, and Charter School Regulations, 603 CMR 1.00, to reflect the broadened student anti-discrimination provision in G.L. c. 76, §5. The Board also directed the Department of Elementary and Secondary Education (Department) to provide guidance to school districts to assist in implementing the gender identity provision.

The gender identity law amended G.L. c. 76, § 5,2 to establish that no person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of gender identity, among other characteristics. The amended Access to Equal Educational Opportunity regulations, 603 CMR 26.00, and the non-discrimination provision of the Charter School 2 The Act amends several other statutes as well, including G.L. c. 151B (governing nondiscrimination in employment), to prohibit discrimination on the basis of gender identity.

Regulations, 603 CMR 1.00, require schools to establish policies and procedures, provide training, and implement and monitor practices to ensure that obstacles to equal access to school programs are removed for all students, including transgender and gender nonconforming students. All districts and schools should review existing policies, handbooks, and other written materials to ensure that they are updated to reflect the new law. At a minimum, this means including the category of “gender identity” within the identification of legally protected characteristics. For example:

Public Schools strives to provide a safe, respectful, and supportive learning environment in which all students can thrive and succeed in its schools. The [ The [ ] Public Schools prohibits discrimination on the basis of race, color, sex, gender identity, religion, national origin, or sexual orientation and ensures that all students have equal rights of access and equal enjoyment of the opportunities, advantages, privileges, and courses of study.

The Minnesota Human Rights Act (https://www.revisor.mn.gov/statutes/?id=363a) prohibits discrimination and harassment in education based on gender expression, actual or perceived gender identity and actual or perceived sexual orientation.9 Minnesota law provides that all students have the right to attend school in a safe and supportive environment where they can learn and have equal access to all educational opportunities.10 Illegal discrimination can occur if a student is expressly denied full utilization of a benefit at school, is indirectly denied full utilization of a benefit at school due to a policy, practice or procedure of the school or if a student is exposed to a hostile environment that interferes with the student’s ability to learn or participate in activities at school.

The Safe and Supportive Minnesota Schools Act11 (https://www.revisor.mn.gov/statutes/?id=363a) prohibits bullying and harassment of all students, including bullying and harassment of students based on gender expression, actual or perceived gender identity and actual or perceived sexual orientation. Under the Safe and Supportive Minnesota Schools Act, public school districts and charter schools are required to adopt a policy that prohibits bullying and harassment of all students, including bullying and harassment based on sex, gender identity, gender expression and sexual orientation.12 Bullying may also rise to the level of a discriminatory hostile educational environment under Title IX or the Minnesota Human Rights Act.

New York State Education Law § 3201-a prohibits discrimination based on sex with respect to admission into or inclusion in courses of instruction and athletic teams in public schools.2 Furthermore, DASA specifically provides that “no student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (including gender identity or expression), or sex by school employees or students on school property or at a school function.”3 DASA includes gender as a protected category and defines gender as “a person’s actual or perceived sex and includes a person’s gender expression.”

Under Oregon law, “[a] person may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly.”1 Discrimination includes “any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, religion, sex, sexual orientation, national origin, marital status, age or disability.”2 Oregon law broadly defines, “sexual orientation” as an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

Under Oregon law, school districts are required to provide a free appropriate public education to all students who are resident within the district. 12 Students “may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly.”13 Discrimination includes “any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, religion, sex, sexual orientation, national origin, marital status, age or disability.”14 “Sexual orientation means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

As cited previously in this document Oregon state law prohibits discrimination by public education providers based on an “individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.”26 While we are unaware of any Oregon court cases which have interpreted this language, courts from other states have ruled on similar language from their own state laws and have found that this language provides protections for transgender students including the use of a bathroom consistent with the student’s gender identity.

Oregon law requires all school districts to “adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying.” 30 This policy must require school district employees to report acts of harassment, intimidation or bullying or an act of cyberbullying to a person identified by the district.31 This includes harassment, intimidation or bullying against transgender students. Under Oregon law ,“harassment, intimidation or bullying” means any act that: (a) ) Substantially interferes with a student’s educational benefits, opportunities

or performance; (b) Takes place on or immediately adjacent to school grounds, at any school- sponsored activity, on school-provided transportation or at any official school bus stop; (c) Has the effect of: (A) Physically harming a student or damaging a student’s property; (B) Knowingly placing a student in reasonable fear of physical harm to the student or damage to the student’s property; or (C) Creating a hostile educational environment, including interfering with the psychological well-being of a student; and (d) May be based on, but not be limited to, the protected class status of a person.32

Oregon law goes on to define “protected class” as a group of persons distinguished, or perceived to be distinguished, by race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income or disability.33 28 ORS 659.850(2). 29 18 Jaime M. Grant, et al., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3, 45 (2011). http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf

30 ORS 339.356 31 ORS 339.356 32 ORS 339.351 33 ORS 339.351 12 Required school district policies must include how the district will publicize the policy within the district including making it readily available to parents, school employees, students and others. 34 School district employees and parents should work together to resolve complaints alleging harassment, bullying or intimidation based on a student’s actual or perceived gender identity or expression.

Oregon law requires all school districts to “adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying.” 30 This policy must require school district employees to report acts of harassment, intimidation or bullying or an act of cyberbullying to a person identified by the district.31 This includes harassment, intimidation or bullying against transgender students. Under Oregon law ,“harassment, intimidation or bullying” means any act that: (a) ) Substantially interferes with a student’s educational benefits, opportunities

or performance; (b) Takes place on or immediately adjacent to school grounds, at any school- sponsored activity, on school-provided transportation or at any official school bus stop; (c) Has the effect of: (A) Physically harming a student or damaging a student’s property; (B) Knowingly placing a student in reasonable fear of physical harm to the student or damage to the student’s property; or (C) Creating a hostile educational environment, including interfering with the psychological well-being of a student; and (d) May be based on, but not be limited to, the protected class status of a person.32

Oregon law goes on to define “protected class” as a group of persons distinguished, or perceived to be distinguished, by race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income or disability.33 28 ORS 659.850(2). 29 18 Jaime M. Grant, et al., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3, 45 (2011). http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf

30 ORS 339.356 31 ORS 339.356 32 ORS 339.351 33 ORS 339.351 12 Required school district policies must include how the district will publicize the policy within the district including making it readily available to parents, school employees, students and others. 34 School district employees and parents should work together to resolve complaints alleging harassment, bullying or intimidation based on a student’s actual or perceived gender identity or expression.

In December 2010, The Rhode Island Board of Regents revised its Policy Statement on Discrimination Based on Sexual Orientation and Gender Identity/Expression which includes the following language: The Rhode Island Board of Regents for Elementary and Secondary Education recognizes that all educational agencies must provide all people and groups with full access to educational opportunities and barriers to student participation based on sexual orientation or gender identity/expression must be identified and removed. The Board also recognizes that all students, without exception, have the right to attend a school in which they feel safe and able to express their identity without fear.

Article I, Section 2 of the Rhode Island Constitution states in part that “No otherwise qualified person shall, solely by reason of race, gender or handicap be June, 2016 Page 3 subject to discrimination by the state, its agents or any person or entity doing business with the state.” RIGL §11-24-2 Discriminatory practices prohibited. In May, 2001, Rhode Island became the second state in the country to explicitly prohibit discrimination on the basis of gender identity or expression, thereby protecting transgender people from discrimination in employment, housing, credit, and public accommodations (R.I. Pub. L. 2001, ch. 340). The law defines gender identity or expression as including a person’s “actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, whether or not that gender identity is different from that traditionally associated with the person’s sex at birth.” R.I. Gen. Laws, §§ 28-5-6 (employment); 34-37-3 (housing); 11-24-2.1 (public accommodations).

RIGL §16-38-1.1 Discrimination because of sex states in part that “Discrimination on the basis of sex is hereby prohibited in all public elementary and secondary schools in the state . . .” The state statute is essentially a restatement of the federal Title IX. RIGL§16-71-3 Educational records access and review rights-Confidentiality of records, similar to FERPA, safeguards the right of privacy of student education records. It applies only to public schools. RIGL §16-2-17 Right to a safe school asserts that each student, staff member, teacher, and administrator has a right to attend and/or work at a school which is safe and secure, and which is conducive to learning, and which is free from the threat, actual or implied, of physical harm by a disruptive student.

RIGL §16-21-34 Safe Schools Act and the RI Statewide Bullying Policy, recognize that the bullying of a student creates a climate of fear and disrespect that can seriously impair the student's health and negatively affect learning. Bullying undermines the safe learning environment that students need to achieve their full potential. The expression, physical act or gesture may include, but is not limited to, an incident or incidents that may be reasonably perceived as being motivated by characteristics such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression or mental, physical, or sensory disability, intellectual ability or by any other distinguishing characteristic. The purpose of the policy is to ensure a consistent and unified statewide approach to the prohibition of bullying at school.

State Policy It is the policy of the State of Vermont that all Vermont educational institutions provide safe, orderly, civil, and positive learning environments. Harassment, hazing and bullying have no place and will not be tolerated in Vermont schools. No Vermont student should feel threatened or be discriminated against while enrolled in a Vermont school. 16 V.S.A. § 570. State Law An owner or operator of a place of public accommodation or an agent or employee of such owner or operator shall not, because of race, creed, color, national origin, marital status, sex, sexual orientation, or gender identity of any person, refuse, withhold from, or deny to that person any of the accommodations, advantages, facilities, and privileges of the place of public accommodation. 9 V.S. A. § 4502(a).

Discrimination/Harassment Harassment of a student on the basis of sex can limit or prevent a student from participating in or receiving educational benefits, services or opportunities. Gender-based harassment may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex stereotyping. For example, harassing a student for failing to conform to stereotypical masculine or feminine notions or behaviors constitutes sex discrimination. Complaints alleging discrimination or harassment based on a person’s actual or perceived transgender status, gender identity or gender nonconformity should be handled in accordance with the Policy on the Prevention of Harassment, Hazing and Bullying of Students. Schools are required to adopt a policy for the prevention of harassment as least as stringent at the Secretary of Education’s model policy. 16 V.S.A. § 570(b). The Secretary’s model policy can be found here:

http://education.vermont.gov/student-support/healthy-and-safe-schools/school-climate#hhbmodel-policy Vermont law defines harassment at 16 V.S.A. §11a(26(A): “Harassment” means an incident or incidents of verbal, written, visual, or physical conduct, including any incident conducted by electronic means, based on or motivated by a student’s or a student’s family member’s actual or perceived race, creed, color, national origin, marital status, sex, sexual orientation, gender identity or disability that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment.

Civil rights laws prohibit discrimination and discriminatory harassment on the basis of gender expression and gender identity in Washington public schools. Chapter 28A.642 RCW | Chapter 392­190 WAC | Chapter 49.60 RCW