The Q&A: Katie Anderson

With each issue, Trib+Edu brings you an interview with experts on issues related to public education. Here is this week's subject:

Katie Anderson is a partner at Strasburger & Price and serves as general counsel for the Fort Worth Independent School District. Anderson co-authored the district's guidelines for transgender students that sparked backlash from Lt. Gov. Dan Patrick and other statewide officials earlier this month.

Editor's note: This interview has been edited for length and clarity.

Trib+Edu: Can you talk about how you came to work on these guidelines for transgender students and bathrooms and what they actually look like?

Katie Anderson: Absolutely. Last spring, in 2015, the Fort Worth ISD office of general counsel headed by Valerie Carrillo asked if we could research what the law requires in accommodating transgender students. The district was receiving numerous questions from different campuses and principals struggling with how to keep these kids safe while not upsetting other students. And the district felt that instead of allowing each campus to handle it individually, there would be great value in having guidelines that provide a roadmap for teachers and principals in helping address the questions.

The district had already passed years ago a policy to extend protection by allowing transgender students to be protected. So our job was to research the law and advise the district on the law and what authority was available as to how Title IX would be interpreted, what the Office of Civil Rights was doing, what courts around the country were doing, what groups were filing which types of cases. 

So our job was to see what the law was and to, to some extent, make an educated estimate as to how Title IX might be enforced in the future. The second part of that, though, is because the district was having specific questions raised by a number of transgender students, the district had to also look at what might be necessary to effectuate its policy of anti-discrimination for those students.

Trib+Edu: What do the guidelines themselves actually stipulate?

Anderson: So the guidelines are a list of dos and don'ts for teachers and campus educators in handling specific questions that are common and had been raised by some of their students. For instance, use the pronoun. If a transgender student identifies as female and wishes to be called a female name and referred to with the pronoun "her," these guidelines suggest that it is important to honor the student's wishes. This isn't very different from if a student were wanting to use a nickname. If their name was, let's say, Katherine like mine, and they want to be called Katie – it's a very simple element of respect to call someone what they want to be called and that's one of the first pieces of the guidelines put in place. 

Of course, the more difficult questions come in those areas of facility use where privacy is already at issue, that being locker rooms and bathrooms. So in looking at the guidance from the Office of Civil Rights, it's very clear that if there's sufficient privacy in the restrooms, which there should be, then that privacy isn't jeopardized by a transgender student utilizing the restroom of their identity. 

Trib+Edu: How does Fort Worth's policy compare to other places from the research that you did?

Anderson: We looked at states across the United States, both at the K-12 level and colleges and universities, to do our best job in seeing what guidelines were in place that appear to make sense for Fort Worth ISD. We sort of took the best of the best and re-crafted them for Fort Worth ISD.

And the one thing we did, which we didn't find in those other policies, was to add a component that clarifies the accommodations will be for those students who consistently hold a sincerely held belief about their gender identity. We took this from another body of constitutional law under the First Amendment, such as religious practices. There's been guidance available to us for years, if not decades, on what is permissible. For instance, Native Americans being able to smoke peyote in their religious ceremonies because they had a sincerely held belief, and it had been done for a very long period of time. In other words, people don't get to just make up what they now believe. They have to show they really believe it. 

Our hope in doing this was to help prevent some of this fear mongering about, "a boy is going to sneak into the girls bathroom." No. We're not going to let a boy sneak into the girls bathroom. Before a boy is allowed to go into the girls bathroom, we have to see that they consistently identify as a girl and we have to see that it's a sincerely held belief. 

We have a huge advantage in schools that municipalities and other entities do not have and that is our campus leadership knows those kids. They know if that transgender female truly identifies as female and truly is willing to give up any of the perceived benefits of having identified as a male. They don't get to play on the boys' team and the girls' team. They don't get to see in any year what might suit them best. So that's a protection that I'm proud we put in because it really does prevent abuse of these guidelines. 

Trib+Edu: You mentioned Title IX earlier, but could you explain a little more how this issue fits into that non-discrimination law?

Anderson: Yes, Title IX states that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance. So those schools that receive federal financial assistance, which is a significant monetary influx for these schools, cannot discriminate on the basis of sex. And the Office of Civil Rights has issued guidance, and they actually did it some time ago, that that includes sexual orientation and gender identity. And the Office of Civil Rights is charged with enforcement of Title IX and should be given deference by the courts.

So our job was to look at what courts across the country were starting to do, where the lawsuits were being filed. We don't have any definitive guidance. The cleanest way to extend protections in our country would be for Congress to enact laws that specify who is gaining those protections, much as it did with Title VII and Title IX when it was first issued.

Shy of that, the question becomes, is a statute already in place? Does it already provide that protection? The Office of Civil Rights says Title IX does and when it says sex, it means gender identity. [The Occupational Safety and Health Administration] has said Title VII, when it says sex, it means gender identity.

We're waiting to see how courts hold this over time and perhaps the best case we have right now is the Gloucester County case in Virginia where the 4th Circuit Court of Appeals sent it back down and said you should follow the guidance of OCR and allow students to participate based on their gender identity. That law is applicable for the 4th Circuit and the states in it. It's still persuasive authority for the other courts around the country. And unless in Texas we have a ruling from the 5th Circuit or the United States Supreme Court, it still is a little unsettled as to ultimately what will be held.

But, the trick here is that a school, any governmental entity, can offer more rights than the constitutional minimum required or that a statute has already protected. So that's what Fort Worth ISD has done, it's offered more rights than the law currently, expressly requires. Although our guess was the federal courts would ultimately agree with the Office of Civil Rights and we know at least one does. And the Department of Justice and Education's letter shows that trend is holding up. But even with that law aside, Fort Worth ISD can offer more protections to students. And we wrote the guidelines with great thought and deliberation to ensure that in adding this level of protection for transgender students, we didn't harm any other students.

Fort Worth ISD cares so much about those kids that they're willing to go the extra distance to make sure any students uncomfortable with the transgender students in the restroom have a right to go somewhere else or excuse themselves and use the restroom at a different time. That's a lot of work for teachers and campus leaders, but they're willing to do it because the point is to create an inclusive environment that allows the best education for all students. And I can't tell you how proud we are to be a partner with Fort Worth ISD and their in-house counsel in drafting guidelines to effectuate that purpose.

Trib+Edu: With that understanding, were you surprised there has been this much statewide and even national attention on these guidelines that you guys adopted?

Anderson: That's a fun question. We were surprised when we went to talk to the principals last August to go over the proposed guidelines and get input and ideas. We were surprised none of them had any objection at all. We were stunned. Those principals have seen kids in pain, they see kids that are hurting. Those principals shared with us that they truly believe these children have these feelings and that these feelings are not a choice. These students were facing suicidal ideations and the principals wanted help and support for those kids.

It's disappointing that some people have expressed opposition in such a negative way. I love that a dialogue is open and that people are discussing this and working through what it might mean in a broader sense. But at the Fort Worth ISD board meeting there were several people in opposition who spoke in a way that did not seem particularly thoughtful or respectful.

Now there have been people on both sides of the coin that fall in that category. Not everyone conducts themselves in a thoughtful and deliberate way. And there is a lot of passion, people feel very strongly about this. And what parents feel is important, but what we know is that the district has been providing these accommodations in various forms in the 2014, 2015 school years.

As for this past school year, we just had more uniform guidelines that we were working to put in place that many campuses were already following. In other words, parents might be unhappy to learn that a transgender female is going to be using the female restroom, but it's already been happening for a period of time with no adverse consequences.