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.
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.”