March 29, 2021 FEATURED ARTICLE

Upholding the Civil Rights of Transgender Students

by Bobbi M. Bittker and Janel George

Introduction

First, it was school bathrooms and locker rooms. Then, it became an issue of preventing transgender youth access to medical care. Now they’re targeting transgender youth in sports and there’s no sign that it will subside any time soon. Transgender youth are under attack.

In 2016, the U.S. Departments of Justice and Education, under the Obama Administration, issued guidance to the nation’s public schools clarifying that Title IX protects students who are transgender. The lengthy accompanying statement was a powerful one, affirming the dignity of transgender youth, and imploring educators to ensure that schools were safe learning environments for all students. Just one year later, the U.S. Departments of Justice and Education, under Trump, withdrew the Obama guidance sending the message that discrimination against transgender students is acceptable.

Since 2018, close to 30 states introduced bans on transgender youth in sports, including Mississippi and Idaho, and even traditionally less conservative states like Connecticut and Hawaii. Similar legislation has been introduced in Congress. These exclusionary laws and policies not only impact the ability of transgender students to participate in sports, but also to experience the solidarity and inclusion that participation affords. Such exclusionary laws and policies are rooted in stereotypes about transgender people and undermine their full participation in the school community.

Schools can and should be safe places for transgender students and other students who identify as LGBTQ+.

Schools can and should be safe places for transgender students and other students who identify as LGBTQ+.

Civil Rights Protections for Transgender Students

The vast majority of American youth attend public schools, and pre-COVID, it’s where they spent most of their waking hours. Schools reflect the same inequalities and hierarchies present in society at large. According to a GLSEN survey, nearly six in ten LGBTQ+ students report experiencing discriminatory treatment at school. This discrimination includes being subjected to school discipline policies and practices that push LGBTQ+ students out of school and increase their likelihood of involvement with the school-to-prison pipeline, compromising their educational outcomes.

Further, LGBTQ+ students who are also Black, Indigenous, Asian, Latinx, or other races/ethnic identities, or those with disabilities face additional bias and discrimination in schools due to these intersecting identities. According to a report by GLSEN and the National Black Justice Coalition, transgender and gender nonconforming Black students experience greater levels of victimization based on sexual orientation, gender expression, and race/ethnicity than LGBTQ+ cisgender Black students. As a result, they lose out on valuable instruction time and their academic outcomes are impacted.

In addition to being subjected to discriminatory discipline practices, LGBTQ+ youth also contend with bullying (both in school and online) and other forms of discrimination, such as refusal by school staff to use their pronouns, lack of accommodations, such as bathroomsconsistent with gender identity, and exclusion from activities.

And the recently publicized killings of transgender people of color only deepens fear of violence among transgender youth. According to the National Center for Transgender Equality, “[p]articularly Black and Latina transgender women—are marginalized, stigmatized, and criminalized in our country.”

Rather than focus on their education, transgender students struggle with being othered by school staff and legislators who prevent them from using bathrooms that conform with their gender identity, bullying from students, school officials who fail to protect them when Federal guidance is issued and retracted like a yo-yo, and now exclusion from sports where they could find comradery and a healthy physical outlet.

In their 2015 National School climate survey, GLSEN that 75 percent of transgender students felt unsafe at school because of their gender expression, 50 percent of transgender students were unable to use the name or pronoun that matched their gender and 70 percent of transgender students said they’d avoided bathrooms because they felt unsafe or uncomfortable. As GLSEN notes: “Discriminatory treatment of students based on their actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion creates barriers to students thriving and their success in school settings and throughout their lives.”

Therefore, exposing and eradicating the discrimination that transgender students experience in schools is critical to fostering positive, inclusive climates that will help them thrive in school and beyond.

So, do youth have any recourse to protect them from discrimination at school?

Title IX

Title IX of the Educational Amendments of 1972 bans discrimination based on sex, protecting students at schools that receive federal funds. Courts determined that sex discrimination includes discrimination based on sexual orientation and gender identity. LGBTQ targets of sex discrimination and harassment have successfully relied on Title IX’s protections in court cases against schools.

Grimm and Bostock

In June 2020, the long-awaited Bostock decision was released by the Supreme Court of the United States. In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender. This shocking decision expanded Title VII protections and courts began to apply Bostock to Title IX cases.

Gavin Grimm, a transgender male, sued the Gloucester County School Board in 2015 because of their policy requiring students to use the bathroom that corresponded with their sex assigned at birth. His challenge was on the grounds that the policy discriminated against him in violation of Title IX and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. After five years of procedural actions, the Fourth Circuit held in favor of Gavin Grimm on August 26, 2020. This was soon after the release of the Bostock decision.

They stated, Under Title IX, “[n]o person … 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.” The Court explained there was “little difficulty holding that a bathroom policy precluding Grimm from using the boys’ bathrooms discriminated against him ‘on the basis of sex.’” The Court recognized that Bostock interpreted Title VII, but they were clear that this decision would “guide [its] evaluation of claims under Title IX.” Other Courts of Appeals applied Bostock in similar ‘bathroom policy’ cases. However, we can expect that Title IX challenges will be not limited to this issue, alone.

Recent Bills Attacking Transgender Youth

In just the last month bills in South Dakota, South Carolina, Mississippi, Missouri, Florida and Wisconsin were introduced, some banning medically necessary hormone treatment for transgender youth, and even more of these bills prohibiting transgender girls from participating in school sports on teams that align with their gender identity. In Mississippi the first anti-trans sports bill was signed into law.

Mississippi’s SB 2536 will prohibit transgender girls and women from competing in public school and college athletics, despite the assertion that transgender women have a physical advantage over cisgender women is not backed by scientific evidence. South Dakota Governor Kristi Noem is enthusiastic about signing into law a similar bill that recently landed on her desk.

On March 22, the Tennessee House passed a bill by an overwhelming majority that would require student athletes “to prove that their sex matches the student’s “original” birth certificate in order to participate in public school sports.”

Considerations for Fostering Equity and Inclusivity –Civil Rights Lawyers and Advocates Committed to Inclusion and Equity for Transgender Students

In January, President Biden signed an Executive Order prohibiting discrimination based on gender identity and sexual orientation, and affirming the Bostock ruling. Federal and state policymakers can take additional action to help to foster safe and inclusive schools for transgender students:

  • Updating and reissuing federal guidance to states and districts on civil rights of transgender students: The guidance issued by the Departments of Education and Justice under the Obama administration regarding how schools can honor the civil rights of transgender students (which was rescinded by the Trump administration), can be updated and reissued. The guidance can clarify that Title IX has been interpreted to prohibit discrimination based upon sex, including sex stereotypes, sexual orientation and gender identity and expression or transgender status. The guidance can also outline examples of policies and strategies that school districts are implementing consistent with federal civil rights law. Regardless of whether state laws explicitly address gender identity and expression, gender non-conforming students are protected under Title IX and state non-discrimination laws.
  • Ensuring enforcement of non-discrimination laws: Federal and local civil rights enforcement agencies must ensure that public schools and other recipients of federal and state funds comply with federal and state civil rights laws and non-discrimination protections. Enforcement is vital to addressing non-compliance and protecting the civil rights of transgender students. In addition, technical assistance can be provided for districts in need of additional support in complying with non-discrimination laws.
  • Ensuring that student privacy is honored. The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student educational records. The law prohibits the improper disclosure of personally identifiable information from students’ records. Information related to gender identity may constitute such information and school officials should be mindful when considering release of such information.

At the school-level, school leaders and advocates can take action to foster inclusiveness. ostering safe and inclusive schools and classrooms (drawing from civil rights principles outlined by the Gay, Lesbian, Straight Education Network (GLSEN)) include:

  • Ongoing professional development opportunities for educators and other school staff to better prepare them to support LGBTQ+ students: Educators sometimes replicate the harm experienced by transgender students in schools by ignoring actions like bullying, targeting transgender students for discriminatory discipline, or incorrectly using pronouns. Therefore, ongoing professional development for educators, including training to address explicit and implicit bias, using inclusive language, and addressing bullying, can help educators and staff foster inclusive and identify-safe learning environments. For example, the Madison Metropolitan School District in Wisconsin has a staff social worker in charge of LGBTQ+ specific staff training and family support and, last year, the district adopted a LGBTQ-centered professional development program. Students learn and thrive in identity-safe learning environments that eliminate social identity threats that can adversely impact student achievement. When adults develop the competencies to appreciate and understand children’s multifaceted identities, experiences, and perspectives, they foster accepting and inclusive learning environments and help students build confidence. Positive relationships between transgender students and educators are critical to fostering safe and inclusive classrooms. And implementation of school climate surveys, which allow students and others to input about their perceptions of school climate, are important tools to help schools assess how they are doing in fostering safe and inclusive environments.
  • Implementing anti-bullying policies: Not only should schools and districts craft and implement anti-bullying that prohibit bullying based upon actual or perceived LGBTQ+ status, but they should ensure that such policies are enforced (without reliance upon exclusionary discipline). Educators and staff should be trained to address bullying when it occurs. And schools should not rely upon transferring students to different schools as an intervention for bullying (except when requested by the student). Along with anti-bullying policies, schools can implement guidelines clarifying that students can use facilities and participate in activities consistent with their gender identities.
  • Supporting inclusive and affirming school curriculum: According to a survey by GLSEN and the National Black Justice Coalition, fewer than one-quarter of Black LGBTQ+ students (21.4%) were taught positive representations of LGBTQ+ people, history, or events. Advocates and policymakers can ensure that curriculum includes the voices and stories of LGBTQ+ individuals, including civil rights leaders like Bayard Rustin (architect of the March on Washington), Lorraine Hansberry (luminary playwright), and Pauli Murray (Episcopal Priest, author, and activist). Inclusion of the stories and legacies of those who share their identities provides LGBTQ+ students with a broader, more comprehensive understanding of history, culture, and the contributions of LGBTQ+ individuals to civil rights and social justice movements. Research demonstrates that students are more likely to engage when they see themselves reflected in curriculum and can connect what they are learning in class to their own lives and communities. For example, educators can use multiple and diverse examples in class that reflect across sexual orientation, gender identity, culture, socioeconomic status, age, or religion. As the GLSEN, National Black Justice Coalition report found: “A school curriculum that is inclusive of diverse identities may help to instill beliefs in the intrinsic value of all individuals … Black LGBTQ students who were taught positive representations about LGBTQ people, history, or events at school felt more connected to their school community, and felt safer at school not only with regard to their LGBTQ identity, but also with their racial/ethnic identity.” Advocates and policymakers can work to ensure that curriculum is comprehensive and affirming of the identities of all students. GLSEN has created a guide for developing an LGBTQ+ inclusive classroom.

Conclusion

Unless and until we counteract the movement to quash trans lives before they really begin, there will be a continued assault on transgender youth, a marginalized segment of society whose financial and emotional autonomy are often impacted due to discriminatory policies and practices. Schools can and should be safe places for transgender students and other students who identify as LGBTQ+. Not only does the law demand so, but the mission of education to empower and support youth calls on educators, advocates, and others to work to foster safe and inclusive schools where transgender youth can thrive. There are tools available in the legal and education systems that can be leveraged to support and affirm transgender youth, if we choose to use them.

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Bobbi M. Bittker

Civil Rights Attorney and Town Councilperson, Bedford, New York

Bobbi M. Bittker is an attorney focusing on civil rights advocacy and town councilperson in Bedford, New York. She is co-chair of the ABA Section of Civil Rights and Social Justice's Sexual Orientation and Gender Identity Committee, sits on the New York State Bar Association  Committee on Civil Rights, and is a founding member of the Human Rights Campaign’s Project THRIVE.

Janel George

Policy Advisor, Civil Rights Attorney, and Adjunct Professor

Janel George is a policy advisor, civil rights attorney, and adjunct professor who teaches a course on racial injustice in K–12 public education through a Critical Race Theory (CRT) framework.