Texas AG Doesn't Understand It's Illegal to Out Trans Students

Texas Attorney General Ken Paxton

The Republican attorney general in Texas says a local school's transgender-inclusive policy violates state law, and he proposes an idea that may itself run afloul of federal protections for trans students.

Responding to a query from noted transphobe Lt. Gov. Dan Patrick, Texas Attorney General Ken Paxton Tuesday issued a nonbinding opinion that declares a modest trans-inclusive policy at the Fort Worth Independent School District a violation of the law. So Paxton proposes his own solution: for faculty to out trans students to their parents. 

The policy, adopted April 19 by the school district's superintendent, Kent Scribner, affirms that transgender students throughout the district should be granted access to the restrooms and locker rooms that correspond with their gender identity. It also requires that schools respond to any requests by students for access to a private, single-stall restroom, or a multistall restroom when no other students are present.

But the equal bathroom access isn’t what the state’s top lawman took issue with. The opinion issued Tuesday pointedly avoids any discussion of federal nondiscrimination protections that already exist for trans students, most powerfully encompassed in Title IX of the Education Amendments of 1972. 

Instead, Paxton’s criticism of the policy focuses on a provision that instructs teachers and faculty to confer with a transgender student before discussing that student’s trans status with their parents or legal guardian. Paxton writes: 

“Far from creating a partnership between parents, educators, and administrators regarding their children's education, the Guidelines relegate parents to a subordinate status, receiving information only on a 'need-to-know basis.’ …

“Furthermore, the provision requiring school personnel to ‘work closely with the student’ to determine to what extent, if any, a parent will be involved in the student's transitioning suggests that employees could, pursuant to these restrictions, encourage some children to withhold information from a parent. … Such action is both against state law and grounds for discipline under the Education Code.”

Upon receiving the attorney general’s opinion, Patrick reiterated his earlier calls for superintendent Scribner to step down, reports The Dallas Morning News. "Today's attorney general opinion is a clear and resounding victory for parents within the Fort Worth ISD who deserve a transparent superintendent and school board that follows the law," Patrick said in a statement.

For his part, Scribner has stood by the policy, accurately explaining that it “helps protect kids from bullying … nothing more, nothing less.” 

In fact, the American Civil Liberties Union reports that it’s illegal for school staff to discuss a student’s sexual orientation or gender identity with other faculty. It's a violation of privacy, and a dangerous one.

Numerous trans and LGBT youth advocates have pointed out that such considerations can be critical for young people who come from hostile home environments. The Gay, Lesbian, and Straight Education Network’s Safe Space Kit advises ally educators to “exercise the utmost discretion and professionalism and be respectful of student privacy in discussion of these matters.” 

The National Association for School Psychologists likewise advises that educators should be cautious about publicizing a student’s trans identity or even a student’s exploration of their gender identity. The association’s professional ethical guidelines instruct school psychologists to “not share information about the sexual orientation, gender identity, or transgender status of a student (including minors), parent, or school employee with anyone without that individual’s permission.” 

In a 2014 position paper on creating “Safe Schools for Transgender and Gender Diverse Students,” the national organization warns that “Coming out to family members often results in physical assault and expulsion from the family home.” It continues: “In one study, more than half of transgender youth reported initial parental reaction to coming out as negative or very negative. … Young adults who experience low family acceptance of identity are more likely to be at risk for depressive symptoms, substance use, and suicidal ideation and attempts.”

Although it’s difficult to come by hard data that corroborates the dangers of LGBT students being “outed” by teachers or classmates, recent years have provided a few real-life case studies that illuminate these risks. 

In Colorado in 2013, the right-wing Pacific Justice Institute launched an aggressive anti-trans campaign that falsely claimed a 16-year-old transgender girl had been “harassing” students in the girls’ bathroom. School and district officials repeatedly stated that no such harassment had occurred, but that didn’t stop the so-called Christian group from publicizing the teenager’s name in its materials, referring to her as a “boy” who was engaged in “unhealthy behavior.” (Responsible media outlets, including The Advocate, referred to the minor child as “Jane Doe” to protect her privacy.) Pacific Justice Institute even produced a video, complete with weeping parents who claimed their daughters had been somehow harmed by the young girl. When the Pacific Justice Institute was forced to address the fact that the girl had not physically, verbally, or emotionally harassed any of her peers, the right-wing organization amended its complaint, suggesting that the trans youth’s mere presence in the girls’ bathroom constituted “harassment.” 

Thrust into the spotlight without her consent or that of her mother, the trans teenager suffered not only social ostracization in the small town where the family lives — including receiving death threats — but was so severely traumatized that she was placed on suicide watch.

A year later, the California-based Pacific Justice Institute once again took aim at the teenager, providing a set of “draft guidelines” for the teen’s school to adopt that effectively allowed the girl’s access to campus restrooms to be determined by the comfort level of her cisgender (nontrans) peers. The policy was not adopted, as Colorado has long had strong trans-inclusive protections in its public schools and statewide nondiscrimination law. 

Other transgender students at the center of legal battles over equal access have encountered similar treatment, including Virginia high school junior Gavin Grimm, but his years-long fight to continue using the boys’ bathroom at his school just resulted in a favorable federal court ruling

After Texas’s Republican leadership gratuitously celebrated the defeat of the trans-inclusive Houston Equal Rights Ordinance, The New York Times said that Lt. Gov. Patrick was responsible for the next trans person who took their life in Texas, unable to endure the hostile environment Patrick and his allies had created.

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