Which Way to the Restroom? Respecting the Rights of Transgender Youth in the School System: A North American Perspective

Freedom from discrimination based on sex is a right. It is clear that a man and woman must be treated the same before the law. As society progresses, the traditional concept of “sex” based on birth is becoming less relevant. Instead, “gender” irrespective of birth sex determines rights. It is not uncommon for individuals to self identify as transgendered, gender non-conforming, gender fluid, gender variant, genderqueer, androgynous, and so on. When a person whose gender identity, gender expression, or behaviour does not conform to that typically associated with the sex to which they were assigned at birth, determining rights can become complicated, especially when the person is a child.The problem is further complicated because the legislation is fairly new and to date there has been limited case law interpretation by tribunals, commissions, and courts in both Canada and the United States, which may result in uncertainty and confusion when attempting to address the needs of the transgendered child at school. This article outlines the main issues that arise in the context of the transgendered student. These include the use of the restroom, participation in sports and use of locker rooms, school dress codes, bullying and harassment of transgendered students, gender and sexual identity curriculum, and name/sex designation on school records. Moreover, we review the current landscape and background within each of these areas as well as highlight the applicable Canadian and American legislation, policies, and case law resources to assist lawyers and school boards understand this rapidly evolving area of law.

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Categorised in: Academic Literature