First Published in the Suffolk County Bar Association’s, The Suffolk Lawyer, 2008

Issues Involving Transgender Students Require Thoughtful Response by Schools

Which restroom must the transgender student use? Can a school regulate the dress of the transgender student? These are questions school officials must answer if a student decides to undergo hormonal therapy or gender reassignment surgery.

Prior to the Supreme Court’s seminal decision of Price Waterhouse v. Hopkins, transgender individuals found little redress in their attempts to obtain civil rights protection under Federal Law. In Price Waterhouse, the Supreme Court concluded that Title VII barred not just discrimination based on the biological difference between men and women, but also discrimination based on an individual’s failure to confirm to socially-constructed gender expectations. Following this rationale, some courts have held that transsexual men who experience adverse employment actions have valid claims under Title VII because they fail to “act like a man” or dress in a feminine manner.

In Tronetti v. TLC Healthnet Lakeshore Hospital, a U.S. District Court in New York considered the rights of a biological male transsexual who felt demeaned by his county jail co-workers during a “transition period” in which he began dressing like a woman prior to gender reassignment surgery. The employer claimed that the plaintiff’s Title VII claim must fail since transsexuals are not protected under Title VII. The court, however, noted that plaintiff was not claiming protection as a transsexual. Rather, he was claiming to have been discriminated against for failing to “act like a man”. The court determined adverse job actions based upon failure to conform to “socially-constructed gender expectations” are discriminatory.

The issue of which bathroom a transsexual may use was addressed by a state Supreme Court in Hispanic Aides Forum v. Bruno. The Hispanic Aides Forum challenged its landlord’s refusal to renew the Forum’s lease due to complaints from other tenants concerning the use of the building’s public restrooms by transgender individuals who patronized the Forum. The court found the landlord had not prohibited transgender individuals from using any restroom, which might have constituted unlawful discrimination, but rather imposed a requirement that individuals use gender-specific restrooms based on biological sex rather than biological self image. The court viewed that requirement as lawful and not discriminatory.

Some of these cases have been evaluated in the school context. In a Massachusetts case, Doe v. Yunits, a male student with a “gender identity disorder” was repeatedly sent home for dressing like a girl. The court concluded the student’s conduct was expressive speech that was understood by those perceiving it. Furthermore, the court ruled the boy’s ability to express himself and his gender identity through dress were important to his health and well being, as attested to by his therapist. The court then determined that the school’s conduct was a direct suppression of speech because biological females who wear items such as tight skirts to school were unlikely to be disciplined by school officials. While this case is not binding in New York, it should guide schools to consider the First Amendment rights of a student who chooses to dress like the opposite sex.

Cases such as Tronetti v. TLC Healthnet Lakeshore Hospital involve transsexuals in the transitional period (that period of time during which the individual is undergoing hormonal therapy) who have not yet undergone gender reassignment surgery. Because of the likelihood of receiving complaints from other students, it is suggested that during the transitional period, biological male students use the boys’ restroom and biological females use the girls’ restroom.

Such a policy, however, may need to be revisited if and when a student has gender reassignment surgery and has thereby obtained the genitalia of the opposite sex. These “post-operative” transsexuals can petition state agencies to have their gender changed on their drivers’ licenses and birth certificates.

When developing policy, schools should take into consideration the emerging rights of transgender students.

This article was submitted by Thomas M. Volz and Jeffrey Mongelli of Guercio and Guercio in Farmingdale, New York.


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