Craft A Transgender Policy

Don’t wait for the Supreme Court to make decisions for your camp

By Isaac Mamaysky and Lucinda Swain

Editor’s Note: This article was written and submitted prior to the Supreme Court's June 2020 ruling https://www.npr.org/2020/06/15/863498848/supreme-court-delivers-major-victory-to-lgbtq-employees

Not so many years ago, most camp professionals approached transgender campers and staff members as a purely theoretical question. “What would we do,” the conversation went, “if a transgender staff member applied for a job?” The LGBT-rights movement had not reached national prominence, American Camp Association staff members did not list their preferred pronouns in their email signatures, and only the most forward-thinking camp professionals solidified policies.

Illustration: © Can Stock Photo / jpgon

As both a camp operator and an attorney who represents camps, I now see just how important the question has become. Over the past few years, the camps I represent have welcomed numerous transgender staff members and campers. Nearly every sizable camp in the major markets now has a policy on transgender community members, and many states have passed laws protecting transgender status. We are also in the midst of some especially interesting developments on the national stage, which might have a significant impact on our industry and countless others.

Read on for an overview of the current, national legal landscape, the Supreme Court’s upcoming landmark decision on transgender discrimination, and the implications of all this for residential camps.

The Legal Landscape

The Supreme Court recently agreed to review several high-profile cases that will help decide the future of transgender rights in the United States. The court will explore whether existing federal bans on sex discrimination also prohibit discrimination based on gender identity and sexual orientation.

Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex, and national origin. Some recent circuit court decisions have held that Title VII’s reference to “sex” includes sexual orientation and transgender status. Since Title VII applies to all employers with 15 or more employees, these decisions have a far-reaching impact on schools, colleges, camps, and many other employers.

Extending To School Summer Programs

While the Title VII decisions apply to employees, they likely extend to students in schools that receive federal funding. Title IX of the Education Amendments Act of 1972 protects students from sex discrimination by any educational program that receives federal funding. Courts often look to cases interpreting Title VII when evaluating claims under Title IX, so courts in certain circuits will likely interpret Title IX’s prohibition against discrimination on the basis of sex to prohibit discrimination on the basis of gender identity and sexual orientation.

But Then Again

Not all circuits take this approach. Some recent decisions have created contrary precedent, holding that discrimination based on sexual orientation is not actionable under Title VII. The Departments of Justice and Education currently support this view, taking the position that Title VII and Title IX do not prohibit discrimination on the basis of sexual orientation and transgender status.

In February 2017, the courts issued a “Dear Colleague” letter withdrawing the Obama administration’s policy interpreting Title IX to bar discrimination on the basis of a student’s gender identity. A few months later, in a September 2017 Dear Colleague letter, the Department of Education reverted back to its 2001 Title IX guidance, which specifies that “Title IX does not prohibit discrimination on the basis of sexual orientation.” Most recently, in August 2019, the Department of Justice filed a brief with the Supreme Court, arguing that Title VII does not prohibit discrimination on the basis of transgender status.

Implications For Residential Summer Camps

The residential camp experience raises particular challenges because campers and staff members live together in such close quarters. Most camps do not receive federal funding, so as a legal matter, the circuit decisions discussed above apply to camp staff members rather than campers. As a practical matter, camps usually have similar policies for both groups—what starts as a policy for staff members often becomes a policy for campers.

A Few Common Approaches Of Camps

Speaking in broad terms, most camps fall into one of four categories in their approach to transgender and non-binary campers and staff members:

• 1. Going beyond traditional accommodations. The most progressive camps offer multiple-housing options, which include single-gender housing, gender-neutral housing, and/or housing for transgender campers, staff members, and allies of the same-gender identity. These camps have changed the traditional camp environment to make it as inclusive as possible for transgender and non-binary community members.

• 2. Accommodating transgender and non-binary campers/staff members in a traditional setting. Many camps do not have separate housing for transgender and non-binary campers and staff members, but their policy is to not question a camper’s declared gender identity, housing, or bathroom preference. So, if a camper identifies as male, then that camper lives in a male bunk regardless of the camper’s biological gender. If a camper does not identify with a gender, the camper can choose housing within the traditional gender-binary options.

• 3. Not having a policy. Many camps, especially those in smaller markets, simply have not thought about these questions. They have not yet been approached by a transgender or non-binary camper or staff member.

• 4. Not accommodating transgender and non-binary campers. Some camps refuse to recognize transgender campers and staff members. These camps discourage transgender campers from attending, refuse to hire transgender staff members, and make housing and other decisions based on biological gender only.

Moving Forward

The Supreme Court heard oral arguments on October 8. Regardless of the ruling, camps will continue to run into complex policy questions, which the court will not address. Imagine a camper who arrives to camp identifying as a different gender than the one declared by the parents on the camp application. The camper requests to be housed based on the declared gender while the parents insist on housing based on biological gender. As the law in this area develops, these types of questions may have clearer answers than they do today.

Present Policies

In the meantime, camps would be well-served to develop comprehensive policies for transgender campers and staff members, and thus avoid scrambling to implement inelegant solutions when an unexpected gender challenge arises on opening day. As camps work on their policies, they should be sure to comply with state laws, which are often more developed and go far beyond federal protections. New York, as one example, recently passed the Gender Expression Non-Discrimination Act, which makes gender identity and gender expression protected classes under the New York Human Rights Law. More states and the federal government may follow suit in the near future.

Isaac Mamaysky is a Partner in Potomac Law Group, where he advises camp-management teams and a variety of employers in many other industries. Reach him at imamaysky@potomaclaw.com or call (212) 531-5050. He is joined in writing this article by Lucinda Swain, a teacher, writer, and camp professional.