Attorney General: V.I. Anti-Discrimination Law Applies to Transgender Students

The V.I. Civil Rights Act’s prohibition against sex discrimination applies to transgender students and V.I. schools should let them use the bathrooms and locker rooms matching their gender identity, V.I. Attorney General Claude Walker has determined.

Education Commissioner Sharon McCollum wrote Walker for guidance on whether transgender individuals in V.I. public schools have legal protections that will allow them to use public restrooms and other accommodations based on their internal gender identity. The issue has come up with the enrollment of a transgender student in the public schools, according to Walker’s letter

Walker said, “Virgin Islands law protects the rights of transgender individuals,” going on to elaborate that the protection stems from the V.I. Civil Rights Act.

For background, Walker discussed the status of the legal debate over rights for transgender individuals, saying that nationally, from 2013 to 2016, at least 24 states considered new laws sponsored by GOP members to restrict bathroom access based on biological sex rather than self-identification and self-presentation of gender.

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So far in 2017, 14 states have introduced similar legislation, with two failing and the other 12 still under consideration.

In May 2016, under President Barack Obama the federal government issued a guidance letter suggesting schools receiving federal money were required to allow transgender students to use the bathroom that matched their gender identity. But a few weeks ago, President Donald Trump’s administration rescinded that interpretation of federal law.

A Virginia teen has sued to be allowed to use the bathroom of their choice, losing in District Court and winning on appeal. But a similar case in Texas was decided against the student and against the Obama administration guidelines. The U.S. Supreme Court has agreed to hear the Virginia case, which might give some legal finality to the debate.

Within the USVI, Walker points out the V.I. Civil Rights Act’s prohibition against discrimination on the basis of sex.  Since sex is not defined in V.I. law, Walker said he looks first to the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, which found, in part, that an employer who acts on the belief that a woman cannot or must not be aggressive on the basis of gender is stereotyping in a way that is forbidden under federal sex discrimination laws.

Walker pointed to four federal appellate court cases that cite the Price Waterhouse case to apply similar protections to transgender individuals. One of those in the Eleventh Circuit Court of Appeals, found that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination.” Walker also said the U.S. Equal Employment Opportunity Commission interprets federal law as prohibiting employment discrimination based on gender identity or sexual orientation.

“Given the courts and agency decisions … it appears clear that the term “sex,” as used in … Virgin Islands Code, also should be interpreted to mean that in the U.S. Virgin Islands, discrimination against a transgender individual based on that person’s transgender status is sex discrimination under the Virgin Islands Civil Rights statute,” Walker wrote.

He recommended the Education Department adopt policies allowing transgender individuals to use facilities that match their gender identity.

“With privacy curtains and other partitions, school districts across the country have addressed the privacy needs of all students in locker rooms in a non-stigmatizing manner based on the particular needs of the situation,” he aid.

Walker also noted the V.I. Legislature addressed some issues concerning sexual discrimination in 2014, putting into a bullying prevention law a clause, saying “bullying has a negative effect on the social environment of schools, creates a climate of fear among students, inhibits their ability to learn and leads to other antisocial behavior” as a result of “discrimination due to sexual orientation.”

“This interpretation of the act is consistent with the true values and spirit of the people of the Virgin Islands – a U.S. jurisdiction inhabited by freedom loving people who believe that all people should have the right to “life, liberty and the pursuit of happiness” without regard to their race, creed, color, national origin, sex or sexual identity,” Walker concluded.

Reached by phone, McCollum said the Education Department wanted to be proactive with this question being discussed currently in the public arena.

“With all this and with changes with the new administration, with President Trump, I simply wanted to make sure when we moved forward with training, that we are legally correct and I wanted to include input from the attorney general,” McCollum said.

“We want our employees to be proactive, to be current and sensitive to the individuals that we serve, and it is far better to be proactive and prepared than to wait and have the potential for confusion down the line,” she said. McCollum also said Walker’s opinion was “well written” and speaks for itself.

At present, it is not an immediate issue, as no individuals are currently presenting as transgender, according to McCollum, adding that the previously mentioned “student has returned to the mainland.”

There have been no problems in the past and no reason for any issues in the future, she said. “We never had any issues. The former student was fully accepted and we identified the student with the gender they stated,” McCollum said.

As for what the schools will do now, “it is just a matter of adhering to the law,” she said. “We are planning a training for administrators and monitors. So we are in the planning stage and I just wanted to make sure we are legally correct.”

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