May 20, 2016
The Honorable Asa Hutchinson Governor of Arkansas
State Capitol Room 250
500 Woodlane Ave.
Little Rock, AR 72201
The Honorable Leslie Rutledge Attorney General of Arkansas 323 Center Street, # 200
Little Rock, AR 72201
RE: Federal guidance, schools and equality
Dear Governor Hutchinson and Attorney General Rutledge:
The ACLU of Arkansas is a private, nonpartisan, nonprofit organization dedicated to defending and protecting the Constitutional and civil rights guaranteed to Arkansans by the U.S. and Arkansas Constitutions and federal, state and local civil rights laws. We correspond today concerning the May 13 U.S. Department of Justice (DOJ) and U.S. Department of Education (ED)’s guidance on Title IX, the public statements released by the Governor’s and Attorney General’s Offices and the public discourse surrounding that guidance and public restrooms in general. We share the goal of ensuring that the rights of all students in schools are protected and hope that we can work together to do right by Arkansas students and ensure that our schools are given the tools that they need to abide by Title IX and other legal obligations.
The ACLU of Arkansas has provided pro-bono legal advice and representation to many Arkansas public school students and their parents to respect the rights of all public school students. We have worked with school officials in different cities, large, small, urban, and rural, on behalf of lesbian, gay, bisexual and transgender (LGBT) public school students and their parents to address a variety of issues that affect LGBT students, including issues related to single-sex facilities and activities.
The law has been established for years that barring a student from single-sex facilities or activities based on that student’s gender identity because he or she is transgender constitutes sex discrimination in violation of Title IX. It is per se sex discrimination because this differential treatment is based on the student’s gender transition; it is also impermissible sex stereotyping
because the student is being denied access based on a failure to conform to gender stereotypes.1
Barring transgender students from gender-appropriate facilities and activities also implicates students’ federal constitutional rights and statutory rights under Arkansas law. The constitutional right to privacy has long protected the right to control the nature and extent of highly personal information released about that individual. Students have a constitutional right to keep private information about their sexual orientation or gender identity absent a compelling, lawful reason.2 Arkansas law also protects students from substantial intimidation, harassment, harm or threat of harm and bullying directed at them based on attributes including, without limitation, race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation. Ark. Code Ann. § 6-18-514(a), (b)(1). Faculty or staff harassment or humiliation of students, and failure to protect students from bullying and harassment, can substantially interfere with a student’s education and lead to liability for school officials and districts.3
The guidance from the DOJ and ED did not change existing obligations under law. The guidance instead offered important clarity for students, parents and students about how to best implement policies that account for the needs of all students. It further explained the federal government’s interpretation of how to best comply with the obligations imposed on educational institutions under Title IX.
The public school officials in Arkansas that we’ve worked with, very much to their credit, have ensured that they abide by the laws as set forth in Title IX, Arkansas Code and court rulings as
1 See, e.g., G. G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., --- F.3d ----,No. 15-2056,2016 WL 1567467 (4th Cir. Apr. 19, 2016); Resolution Agreement Between Arcadia Unified Sch. Dist., the U.S. Dept. of Educ., and the U.S. Dept. of Justice, OCR Case No. 09-12-1020, DOJ Case No. 169-12C-70 (July 24, 2013) (school must “provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity” and “treat the Student the same as other male students in all respects in the education programs and activities offered by the District”); United States Dept. of Educ., Questions and Answers on Title IX and Sexual Violence (issued April 29, 2014), at 5 (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”); see generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (concerning sex discrimination); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004); Logan v. Gary Community School Corp., 2008 WL 4411518 (N.D. Ind. Sept. 25, 2008); Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000); Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997).
2 Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000) (“It is difficult to imagine a more private matter than one's sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity.”); Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998) (“Publicly revealing information [about sexuality] exposes an aspect of our lives that we regard as highly personal and private.”); McLaughlin v. Board of Educ. of the Pulaski County Spec. Sch. Dist., 4-03-CV-00244GTE (E.D. Ark. Sept. 3, 2003).
3 See, e.g,, in addition to citations above, Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134–36 (9th Cir. 2003); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) Estate of Barnwell ex rel. Barnwell v. Watson, No. 4:13CV00681-JM, 2014 WL 4248451, at *1 (E.D. Ark. Aug. 26, 2014).
well as guidance from the DOJ and ED.4 When these Arkansas schools have treated students as required by Title IX, Arkansas law, court decisions, and previously provided guidance, school officials and students in these districts have returned to teaching and learning without disruption.
Fears now expressed by some that abiding by the law would lead to disruption, safety problems, or invasions of privacy simply have not come to pass. Were some person to engage in inappropriate conduct in a restroom – no matter their gender identity or expression – school policies and state laws already provide the authority to address such misconduct.
All students should have safe, supportive school environments in which to learn, thrive and grow. Providing access to single-sex facilities consistent with a student’s gender identity is integral to the student’s safety, privacy, and well-being. Excluding transgender students from the same restrooms used by other students not only violates law but sends a message that transgender students should be singled out for differential treatment.
We are concerned that statements encouraging schools to disregard the guidance not only may undermine years of lawful treatment of students by schools and threaten funding for education but also can invite and encourage stigmatization and harassment of LGBT individuals. Statements in opposition to these guidelines have already spawned outrageous and aggressive behavior by adults against transgender people and those perceived to be transgender. Protecting students, including those who are transgender, is not only required by law, but it is also the right thing to do.
On behalf of students, parents, and school officials who have abided by the law and respected students’ rights, we urge you to ensure that all students are protected in Arkansas and that Title IX and other federal laws are followed. We also urge you to help ensure that anti-LGBT and anti-equality bills and laws do not pass here in Arkansas. Not only would these measures cost the state millions of dollars in revenue and federal funding, but such strikes against equality and the humanity of Arkansans are harmful to the people in our state and our state as a whole. We welcome conversation about these matters and how we can work together for policies that support all students and all Arkansans. Our sincere appreciation to you for your time and consideration. Please do not hesitate to contact us at 501-374-2842.
Rita Sklar Holly Dickson
4 See, United State Dep’t of Education, Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, at 25, available at http:// www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf ; see also Resolution Agreement between Arcadia Unified School District and the United States Department of Education, Office for Civil Rights, and the United States Department of Justice, Civil Rights Division, at 3, available at http://www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadia... (federal government’s resolution agreement with school district regarding transgender student’s claim of discrimination required all records indicating student’s birth name and gender to be kept confidential).