Restrooms and Facilities

Schools may maintain separate restroom facilities for male and female students. Students should have access to restrooms that correspond to their sincerely held gender identity. When a transgender student’s support includes access to a restroom that corresponds with their sincerely held gender identity, there may need to be accommodations made for other students. In this case, if any student, whether transgender or not, desires increased privacy, or feels uncomfortable, schools should make every effort to provide the student with reasonable access to an alternative restroom (e.g., single-stall restroom or the health office restroom). A transgender student should determine which restroom to use. A transgender student should not be compelled to use an alternative

In this instance, it may not be necessary to do anything. This student appears to be gender nonconforming and may or may not identify as transgender. Page 7 restroom. Schools may take steps to designate single stall “gender-neutral” restrooms on their campus.

All students should have access to locker room, bathroom, and shower facilities that are safe, comfortable, and convenient. Absent a concern for safety, schools should permit a student to use the restrooms or locker rooms for which they identify with. If private or separate facilities are requested by any transgendered or non-transgendered student, the student should be provided with those facilities. Remember, a student cannot be forced to use a restroom for which they do not identify.

Students must be permitted to use the toilet, locker room, and shower facilities corresponding to their gender identity. Facilities such as a curtained changing area or unisex facilities may be provided and made available to all students, but should not be used to isolate or segregate students based on their sexual orientation, gender expression, or gender identity. Students shall not be required to use facilities corresponding to their assigned birth sex/gender, where their assigned birth sex/gender and their gender identity are different.

If the educational institution offers housing in which students are separated or assigned by gender, students should be permitted to reside in the housing facilities corresponding to their gender identity.

Perhaps the most difficult and sensitive issue school administrations will face is the use of bathrooms and locker rooms. Respect for the privacy and comfort-level of each student can guide the decision-making process. For example, a transgender student may not feel comfortable in a sex-specific bathroom or locker room. Likewise, a cisgender student may not feel comfortable using a bathroom or locker room with a transgender student. Having a gender neutral, single stall bathroom available to those students respects the privacy and comfort-level of each of them. Not every school building has such a bathroom generally available, but it may be that the nurse’s office can be open for this purpose.

There are several cases that have found it discriminatory to mandate that a transgender student use a particular bathroom or locker room. See, e.g., Doe v. Clenchy, No. 09-201 (Me. Super. Ct. April 11, 2011; Mathis v. Fountail-Fort Carson School District #8, No. P20130034X (Colorado Division of Civil Rights. June 17, 2013). But, there are cases that find to the contrary. Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D.Pa., March 31, 2015); GG v. Glouscester County School Board, Civil No. 4:15cv54L (E.D.Va., Sept. 17, 2015). The law has not yet settled on this issue.

Provide access to the restroom that corresponds to the student’s gender identity. Designate any available single stall restroom with a locking door as a unisex/gender neutral restroom and as available to all students. If a single stall student restroom is not generally available, designate a private restroom such as one in the health suites for any student who requests increased privacy and safety, for any reason. This accommodation may be offered to all students. Permit transgender and gender non-conforming students whose gender identity is not exclusively male or female to use facilities they believe are the most consistent with their safety and gender identity.

All students are entitled to have access to restrooms, locker rooms and changing facilities that are sanitary, safe, and adequate, so they can comfortably and fully engage in their school program and activities. In meeting with the transgender student (and parent) to discuss the issues set forth in this memorandum, it is essential that the principal and student address the student’s access to the restrooms, locker room and changing facility. Each situation needs to be reviewed and addressed based on the particular circumstances of the student and the school facilities. In all cases, the principal should be clear with the student (and parent) that the student may access the restroom, locker room, and changing facility that corresponds to the student’s gender identity. While some transgender students will want that arrangement, others will not be comfortable with it. Transgender students who are uncomfortable using a sex-segregated restroom should be provided with a safe and adequate alternative, such as a single “unisex” restroom or the nurse’s restroom. Similarly, some transgender students may not be comfortable undressing in the changing facilities that correspond to the student’s gender identity. The following are examples of ways in which school officials have responded to these situations:

In one elementary school, a transgender second-grader socially transitioned from female to male. The principal informed the staff: For the remainder of this year, he will use Nurse Margaret’s restroom, and toward the end of the year we will make future 10 As discussed in the section on Names and Pronouns, the Department’s publication Assigning State Assigned Student Identifiers (SASIDs) to Massachusetts’ Public School Students guides district staff through the process of adding or revising SIMS data.

Some students may feel uncomfortable with a transgender student using the same sexsegregated restroom, locker room or changing facility. This discomfort is not a reason to deny access to the transgender student. School administrators and counseling staff should work with students to address the discomfort and to foster understanding of gender identity, to create a school culture that respects and values all students. The Department strongly recommends that districts include an appropriate number of genderneutral restrooms commensurate with the size of the school, and at least one gender-neutral changing facility, into the design of new schools and school renovations.

School staff as well as students and their families may find the use of restrooms and changing facilities to be among the more challenging issues presented by the gender identity law, perhaps due to issues of personal privacy. As emphasized in other sections of this guidance, these issues should be resolved on a case-by-case basis, through dialogue with students and parents, and through leadership in creating safe and supportive learning environments.

Every student needs to be safe in the restroom. For a variety of reasons, a student may have concerns about privacy or comfort when using a restroom with other students. Any student who has a need or desire for increased privacy, regardless of underlying reasons, has the right to access a single-user restroom. Students should be allowed to use the restroom in accordance with their gender identity. Alternative and nonstigmatizing options, such as an all-gender or single-user restroom (e.g., staff bathroom or nurse’s office), should be made available to all students who request them. While gender-neutral bathroom facilities are often the solution that works best for all students, including transgender students, districts are reminded that current interpretation of federal civil rights laws protect the right of transgender students to use the bathroom of their gender identity if they so choose. By making behavioral expectations clear, supervising facilities appropriately, and enforcing relevant policies, schools can address concerns about safety and privacy in these spaces.

Transgender and gender nonconforming students should be afforded the opportunity to use the restroom of their choice. Some students may feel uncomfortable with using a restroom with a transgender or gender nonconforming student. Any student who wishes not to share a restroom with a transgender or gender nonconforming student can be provided a private space such as a single-user restroom. Many schools have chosen to make single-stall restrooms available to all students. For example, some schools have re-purposed a staff restroom into a single user restroom for all students to use.

School districts, as well as students and their families, may find the use of restrooms, changing facilities, and participation in extracurricular activities to be among the more important issues in this area. The United States Departments of Education and Justice have stated that: [u]nder Title IX, discrimination based on a person’s gender transgender status, or a person’s nonconformity, identity, a person’s to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under

Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination (emphasis added). Alternative accommodations, such as a single “unisex” bathroom or private changing space, should be made available to students who request them, but should never be forced upon students, nor presented as the only option.

School districts, as well as students and their families, may find the use of restrooms, locker rooms, changing facilities, and participation in extracurricular activities to be among the more important issues to consider. OCR has recognized that school districts “in preventing and redressing discrimination, … must formulate, interpret and apply their rules in a manner that respects the legal rights of students, including constitutional rights relating to privacy.”

In 2015, the United States Departments of Education and Justice stated that: Under Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that matches his (her) gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.

Based on a recent OCR finding against an Illinois school district, it is recommended that alternative accommodations, such as a single “unisex” bathroom or private changing space, should be made available to students who request them, but should not be forced upon students, or presented as the only option.

All students are entitled to have access to restrooms, locker rooms and changing facilities that are sanitary, safe, and adequate, so they can comfortably and fully engage in their school program and activities. The May 13, 2016 guidance issued by the U.S. Departments of Education and Justice states that: As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.

The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. Accordingly, the student may access the restroom, locker room, and changing facility that correspond to the student’s gender identity. A student, upon request, should be provided with a safe and non-stigmatizing alternative to a gender-segregated facility. This may include the addition of a privacy partition or curtain, permission to use a nearby private restroom or office, or a separate changing schedule. However, requiring a transgender or gender non-conforming student to use a separate, nonintegrated space should not be done unless requested by the student and or family. Under no circumstances may students be required to use sex-segregated facilities that are inconsistent with their gender identity.

Some students may feel uncomfortable with a transgender student using the same sex-segregated restroom, locker room or changing facility. This discomfort is not a reason to deny access to the transgender student. School administrators and counseling staff should work with students to foster understanding of gender identity and to create a school culture that respects and values all students. Schools could consider gender-neutral restrooms and/or gender-neutral changing facility in the design of new schools and school renovations.

The use of restrooms and locker rooms by transgender students requires schools to consider numerous factors, including, but not limited to: the transgender student’s preference; protecting student privacy; maximizing social integration of the transgender student; minimizing stigmatization of the student; ensuring equal opportunity to participate; the student’s age; and protecting the safety of the students involved. A transgender student should not be required to use a locker room or restroom that conflicts with the student’s gender identity.

Schools may consider including gender neutral restrooms into the design of new construction and/or building renovation.

Public schools must allow students to use the restroom that corresponds to their gender identity. Any student—transgender or not—who requests greater privacy for any reason should be given access to an alternative restroom, such as a staff restroom or health office restroom. However, school staff cannot require a student to use an alternative restroom because of their transgender or gender non­conforming status.

Having safe access to restroom facilities is important to the health and wellbeing of all people, including those who identify as transgender and gender-­‐nonconforming. Students are allowed to use the same bathrooms as their peers, unless they request alternate accommodations. This means that transgender and gender-­‐nonconforming students are entitled to use the bathroom that matches their gender identity. Any student, transgender or otherwise, who has a need or desire for increased privacy, regardless of underlying reasons, also has the right to access a single-­‐user restroom, such as a staff bathroom or the bathroom in the nurse’s office. However, the single-­‐user bathroom may not be given as the only option for transgender or gender-­‐nonconforming students.