A Word from Legal
Transgender Student Protections and Educator Rights
Federal law regarding protections for transgender or gender non-conforming (TGN) students, including the right of students to designate and be referred to by their preferred names and pronouns, is currently unsettled. In 2022, Maryland solidified its educational policy prohibiting discrimination against or discipline of students, a prospective student, or their parents or guardians on the basis of race, ethnicity, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity, or disability.* A specific complaint process and timeline was also instituted.
Federally, the primary protection for TGN students is Title IX of the Education Amendments of 1972. While official interpretations of Title IX have fluctuated, the Biden Administration’s position is that Title IX protects TGN students from discrimination based on their gender identity. Regulations reflecting this interpretation are expected to be adopted.
Some school systems have adopted name and pronoun policies that some employees assert implicate their rights to freedom of speech and free exercise of religion, and their employment rights under Title VII of the Civil Rights Act. While public school employees do not give up their right to free speech, that right is not unlimited. As a result, a federal case held that a policy requiring the educator to use students’ preferred names and pronouns did not violate the educator’s right to free speech.
Currently being raised in litigation is whether parental rights to direct the upbringing of children extends to them directing school policy on issues such as use of facilities, name and pronoun choice, and parental notification of curricular materials. In Montgomery County, a group of parents is seeking the right to remove their children when books featuring LGBTQ characters are read or discussed. This would be untenable, and thus far, the courts have agreed. Together, MCEA/MSEA/NEA filed an amicus brief to include educator voice and the need to create a safe, inclusive environment for all students. We anticipate a favorable outcome supporting MCPS’ inclusive educational policies and curriculum.
If confronted with such issues in your school, contact your local UniServ director who, in consultation with MSEA’s legal team, can assist you.
*See §26-704 of the Education Article.