Schools in the Middle: Resolving Schools' Conflicting Duties to Transgender Students and Their Parents

Abstract

This article explores the dilemma facing a school when a transgender student requests gender affirmation services that that student’s parent opposes. Of the various potential sources of a transgender student’s right to gender affirmation (local policy, Title IX, the Constitution), the Equal Protection Clause is the most appropriate. Having critiqued the present approach being used by the courts as of 2013, the article then argues that rational basis is the correct standard of the three potentially applicable standards of scrutiny for the fundamental right to parent (strict scrutiny, hybrid claim heightened scrutiny, and rational basis). Evaluating a school’s denial of gender affirmation based on a parent’s objections under intermediate scrutiny and a school’s provision of gender affirmation over a parent’s objection under rational basis, this article concludes that a school must provide gender affirmation to a transgender student even if that student’s parent objects.

Keywords: Transgender, Gender Identity, Gender Affirmation, Children, Schools, Constitutional Law, Title IX, Equal Protection