Protecting Transgender Students: Application of Title IX to Gender Identity or Expression and the Constitutional Right to Gender Autonomy
Dr. Jillian T. Weiss, Professor of Law and Society, Ramapo College of New Jersey
Susan began her fifth-grade year in September, 2007. Her use of the girls' restroom went smoothly until a male student followed her into the restroom on September 28 and called her a fag and again disrupted her use of the girls' restroom on October 3. The male student entered the restroom at the instigation of his grandfather, his guardian, who told him that Susan was really a boy and shouldn't be allowed to use the female restroom. The male student's grandfather urged him to enter the girls' restroom because he disagreed with the sexual orientation anti-discrimination law and told his grandson that if Susan could use the restroom as a boy, then the male student could use that restroom as well. The grandfather had a political or religious objection to the sexual orientation nondiscrimination law. The male student's conduct was a violation of serious school policies. No other students expressed discomfort with or objected to Susan's use of the girls' restroom.
After the two incidents in which the male student followed Susan into the girls' restroom, the school terminated her use of the girls' restroom over Susan's and her parents' objections....The school continued to exclude Susan from the girls' restroom and forced her to use a separate restroom during her sixth grade year at Orono Middle School.
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[A]t the time that the school terminated Susan's use of the girls' restroom, Susan "was living full-time as a female in [the] school environment." The School Counselor, Director of Special Services, Principal, Acting Principal, and Susan's fifth grade teacher all testified that Susan looked and acted like a typical fifth grade girl. In fact, transgender children who undergo social role transition prior to puberty appear indistinguishable from their peers with the same gender identity who are not transgender. It is therefore unsurprising that everyone involved agreed that Susan could not use the boys' restroom in fifth or sixth grades.... Superintendent Clenchy reasoned that in such cases, the victim of the harassment did not do anything wrong and the school is obligated to stop the harassing behavior and teach tolerance and respect for other students.
Memorandum in Support of Plaintiff's Motion For Summary Judgment, Doe v. Clenchy, Maine Superior Court, No. CV-09-201 (January 30, 2012), available at http://www.glad.org/uploads/docs/cases/doe-v-clenchy/2012-01-30-doe-v-clenchy-motion-for-summary-judgment.pdf
Susan Doe's claim for discrimination under the Maine Human Rights Law was rejected by the trial court, and is on appeal at the time of this writing. What would Susan Doe's rights be under federal law?
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., states in pertinent part 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..."
20 U.S.C. § 1681 (emphasis added).
What is the meaning of "sex" in Title IX? There is a strong argument to be made that it has a similar meaning to "sex" as used in other federal laws. The U.S. Supreme Court's decision in Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989) held that failure to promote a female employee because of perceptions that she was not sufficiently feminine constituted sex stereotyping, which is held to be sex discrimination within the meaning of the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
After that decision, many federal courts have found that transgender persons are protected if the discrimination took the form of "sex stereotyping" based on their gender non-conforming appearance. These include courts in the First Circuit, Rosa v. Park West Bank, 214 F.3d 213, 215-16 (1st Cir. 2000) ("That is, the Bank . . .treat[s] . . . a woman who dresses like a man differently than a man who dresses like a woman."); Second Circuit, Tronetti v. Healthnet Lakeshore Hosp., 2003 U.S. Dist. LEXIS 23757, *12, (W.D.N.Y. Sept. 26, 2003) ("Tronetti, however, is not claiming protection as a transsexual. Rather, Tronetti is claiming to have been discriminated against for failing to 'act like a man.'"); Third Circuit, Mitchell v. Axcan Scandipharm, 2006 U.S. Dist. LEXIS 6521, *5 (W.D. Pa. Feb. 21, 2006) (holding that a transgender plaintiff may state a claim for sex discrimination by "showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant's actions"); Fifth Circuit, Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653, 659-661 (S.D. Tex. 2008) ("Title VII and Price Waterhouse . . . do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and [a] 'macho' female who . . . is perceived by others to be in nonconformity with traditional gender stereotypes."); Sixth Circuit, Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) ("based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.); Ninth Circuit, (Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) ("[T]he perpetrator's actions stem from the fact that he believed that the victim was a man who 'failed to act like one.'") 204 F.3d 1187, 1198-1203 (9th Cir. 2000); Kastl v. Maricopa County, 325 Fed. Appx. 492, 493 (9th Cir. 2009) ("After Hopkins and Schwenk, it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer's expectations for men or women."); and the Eleventh Circuit, Glenn v. Brumby, 663 F.3d 1312, 1317-1318 (11th Cir. 2011) ("A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes... [A]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.").
However, the "gender stereotyping" cause of action appears to require proof that transgender persons were subjected to discrimination because of animus based on their "gender expression." Thus, transgender persons are theorized as not conforming to their perceived birth sex, rather than as having a protected "gender identity." For example, in Smith v. City of Salem, the 6th Circuit originally ruled that discrimination based on gender non-conforming conduct and transsexual status were both protected from discrimination by federal law. Smith v. City of Salem, 369 F.3d 912, 918 (6th Cir. 2004). It amended its opinion to take out the line "We find both bases of discrimination actionable pursuant to Title VII." Smith v. City of Salem, 378 F.3d 566, 571 (2004).
Only two federal courts have specifically ruled that transgender people are protected because of their sex. The first is the lower court opinion in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D. Ill. 1983) , rev'd, 742 F.Supp. 1081 (7th Cir. 1984) ("I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, "sex," as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII."). The second case is Schroer v. Billington, 577 F.Supp.2d 293, 308 (D.D.C. 2008) ("Even if the decisions that define the word "sex" in Title VII as referring only to anatomical or chromosomal sex are still good law -- after that approach "has been eviscerated by Price Waterhouse," Smith, 378 F.3d at 573 -- the Library's refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of . . . sex.'")
The United States Equal Employment Opportunity Commission issued an opinion last year on this issue of whether sex stereotyping is the same as sex discrimination, in the case of Macy v. Holder. The EEOC held that there is no real distinction between sex discrimination and sex stereotyping:
We find that the Agency mistakenly separated Complainant's complaint
into separate claims: one described as discrimination based on "sex"
(which the Agency accepted for processing under Title VII) and others that
were alternatively described by Complainant as "sex stereotyping,"
"gender transition/change of sex," and "gender identity"
(Complainant Letter of Nov. 8, 2011); by the Agency as "gender
identity stereotyping" (Agency Letter Nov. 18, 2011); and finally
by Complainant as "gender identity, change of sex and/or transgender
status" (Complainant Letter Feb. 8, 2012)....Each of the formulations of
Complainant's claims are simply different ways of stating the same
claim of discrimination "based on . . . sex," a claim cognizable under Title VII.
Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2011), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt
The EEOC also held that gender stereotyping evidence is not necessary in order to prove that sex discrimination occurred against a transgender person:
Alternatively, if Complainant can prove that the reason that she did
not get the job at Walnut Creek is that the Director was willing to hire
her when he thought she was a man, but was not willing to hire her once
he found out that she was now a woman--she will have proven that the
Director discriminated on the basis of sex. Under this theory, there
would actually be no need, for purposes of establishing coverage under
Title VII, for Complainant to compile any evidence that the Director
was engaging in gender stereotyping.
Id. This EEOC opinion is of great importance precisely because it establishes that discrimination based on transgender identity does not establish a new protected class, and that transgender discrimination is not different from sex discrimination, because gender identity is a part of sex. However, it is important to note that the Macy decision has not yet been tested in federal court, and it is possible that a federal court would not uphold the Macy decision.
It might seem to some that it does not matter what name discrimination against transgender people is called, so long as it is prohibited. It important, however, to understand that transgender identity is a real identity for transgender people. Sex discrimination is not simply a matter of avoiding harassing name-calling and assaults, but also a matter of obtaining respect for one's identity in a myriad of ways. I have suggested that there are eight categories, of legal gender regulation that affect transgender people:
1) laws regarding sex designation on government-issued identification, such as birth certificates and driver licenses,
2) name change laws that restrict a person's right to use a name stereotypically considered of the opposite sex,
3) laws requiring or permitting sex segregation in public facilities, such as bathrooms and dressing rooms, educational settings, youth facilities, homeless shelters, drug treatment centers, foster care homes, domestic violence shelters and prisons,
4) laws requiring or permitting sex discrimination in private settings, such as employment, sports and assisted reproductive technologies,
5) policies imposing restrictions or negative consequences on the right to transition or cross-dress, such as those imposed on youth, on divorced transgender parents, on adoptive parents, in workplaces, educational institutions and prisons,
6) exclusions for transgender persons in private and government health care,
7) laws that restrict marriage and/or civil unions based on gender, including rights contingent on the validity of marriage, such as intestate inheritance, right to sue for torts to a domestic partner, alimony, child custody, visitation and support, and insurance coverage and
8) military service laws based on gender and transgender identity.
See Jillian T. Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas, 5 Touro Journal of Race, Gender and Ethnicity, No. 1, 4-5 (2010) (citing law reviews).
In the educational setting, there are four rights that are particularly important for transgender students, beyond freedom from harassing name-calling and assaults: 1) recognition of proper name and pronouns, 2) proper restroom and dressing room usage, 3) proper dress codes, and 4) protection from harassment that involves invasive questioning of one's identity, right to maintain such an identity, medical history, and anatomical configuration.
It is not enough to say that one is protected from being stereotyped, but not protected from those who publicly deny or question his or her identity, or ask invasive questions, even if motivated by good faith, about one's transgender identity. If gender identity is not part of sex, and discrimination against transgender identity is not sex discrimination, but merely a form of gender stereotyping, then the school must respond to only certain types of bullying by other students, but not to privacy invasions by teachers or administrators, even with good faith motives motivated by misunderstanding of gender identity, or those with intent to deny transgender students respect for their gender identity.
The etymology of the words "sex," "gender" and "transgender" demonstrate that gender identity is a part of sex. See Jillian T. Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the "Plain Meaning" of "Sex" in Title VII of The Civil Rights Act of 1964?, 18 Temple Political and Civil Rights Law Review 573 (2009) (reviewing the history of the terms "sex," "gender" and "transgender," and discussing federal cases holding sex discrimination to include transgender persons). Therefore, from the standpoint of statutory interpretation, the term "sex" in Title VII includes gender identity. This is the first claim that a plaintiff should include in a complaint based on failure to provide appropriate accommodations to transgender students.
The United States Department of Justice has indicated that Title IX's prohibition on sex discrimination extends to a right to be free of discrimination based on both sexual harassment and gender stereotyping. See Office For Civil Rights, Dep't of Educ., Revised Sexual Harassment Guidance: Harassment Of Students By School Employees , Other Students, or Third Parties 2 (2001), available at http://www2.ed.gov/offices/OCR/archives/pdf/shguide.pdf and Memorandum of Law in Support of the United States' Motion to Intervene, J.L. v. Mohawk Cent. Sch. Dist., No. 6:09-CV-943 (N.D.N.Y. Jan. 14, 2010), available at http://www.justice.gov/crt/about/edu/documents/mohawkmotion.pdf.
Some federal courts have agreed. Doe v. Brimfield Grade School, 552 F.Supp.2d 816 (C.D. Ill. 2008); Theno v. Tonganoxie Unified School District No. 464, 377 F. Supp. 2d 952, 965 (D. Kan. 2005); Snelling v. Fall Mountain Regional Sch. Dist., 2001 WL 276975, at *4 (D.N.H. 2001); Montgomery v. Local Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1091 (D. Minn. 2000) (holding that harassment based on "stereotyped expectations of masculinity" is prohibited by Title IX). However, these guidelines, memoranda and cases do not go far enough. They do not explicitly cover the rights of a transgender student to accommodation of forms of address, dress codes, facilities usage and protection from invasive questioning.
In related developments, federal courts have had differing opinions about Title IX claims that include or border too closely on sexual orientation discrimination. Some have ruled that such claims are not recognized. See, e.g., Montgomery v. Independent School District No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000); Hoffman v. Saginaw Public Schools, 2012 U.S. Dist. LEXIS 88967, *24 (E.D. Mich. 2012). Others have explicitly recognized that Title IX claims include sexual orientation. See, e.g., Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003); Nabozny v. Podlesny, 92 F. 3d 446 (7th Cir. 1996). Title IX does not, however, exist in a vacuum. It is increasingly clear that the Equal Protection Clause, applicable to state action in the form of public schools, not only prohibits discrimination based on sex and gender stereotyping, but also sexual orientation.
The development of the law with regard to sexual harassment and sexual orientation harassment is not necessarily helpful to transgender students. Transgender identity is generally not theorized by the medical profession or by transgender individuals themselves as a matter of sexual orientation. Sexual orientation does not require the same type of accommodations as that required by transgender students, in the form of forms of address, dress codes, facilities usage and protection from invasive questioning. Protection of transgender identity is not merely a matter of being free from derogatory comments. The current state of Title IX law is not sufficiently robust to make clear whether transgender students are entitled to protection for forms of address, dress codes, facilities usage appropriate to their gender identity, and protection from invasive questioning.
Should lawyers representing transgender students against a public school present a Title IX theory? Yes, particularly if there are issues of sexual harassment or gender stereotyping present. The argument should also be made that "sex" includes gender identity. See Jillian T. Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the "Plain Meaning" of "Sex" in Title VII of The Civil Rights Act of 1964?, 18 Temple Political and Civil Rights Law Review 573 (2009) (reviewing the history of the terms "sex," "gender" and "transgender," and discussing federal cases holding sex discrimination to include transgender persons).
Reliance on Title IX alone, however, is not sufficient. There are constitutional theories that can supplement and inform the Title IX case. By demonstrating that the U.S. Constiution provides protection for gender identity under the rubric of sex discrimination, plaintiffs' attorneys can create a more robust theory of the case. Courts have ruled on constitutional rights covering transgender persons under the First Amendment, Doe v. Yunits, 2000 WL 33162199 (Mass. Super. 2000), Eighth Amendment, Kosilek v. Spencer, 2012 U.S. Dist. LEXIS 124758 (D. Mass 2012) and Equal Protection Clause, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). These and other cases also demonstrate that there is an emerging constitutional right to "gender autonomy," which supports provision of accommodation to transgender students for forms of address, dress codes, and facilities usage and protection from invasive questioning.
In law review articles in 2001 and 2010, I suggested that there is a fundamental right to "gender autonomy" that protects people with transgender and transsexual identity. See Jillian T. Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas, 5 Touro Journal of Race, Gender and Ethnicity, No. 1 (2010); Jillian T. Weiss, The Gender Caste System: Identity, Privacy and Heteronormativity, 10 Law & Sexuality 123 (2001) (hereinafter referred to as "Gender Caste System"). In these articles, I noted a constellation of issues that constitute a right to gender autonomy, including forms of address, dress codes, and facilities usage. I identified two strands of constitutional jurisprudence: the first a right of self-determination of gender, based on privacy cases that promoted self-determination of private decisionmaking of important life choices, and the other a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information. "The right to gender autonomy" may therefore be defined as the right of self- determination of one's gender, free from state control, and the right to self-identify as that gender, free from state contradiction.
While the label "gender autonomy" may have been new, the idea of a right to change sex had been posited in U.S. courts starting in the 1960's, and had been grounded in constitutional privacy analysis since the 1970's. In the United States, laws had been put in place in various states since the 1970's to allow changes in the sex marker on birth certificates and driver's licenses. However, there was no recognition that such laws were anything more than a mere legislative prerogative, and they were often ignored by the courts, particularly in cases relating to marriage. I argue that the state's failure to recognize transgender identity, and the failure of courts to give legal effect to it, invades the constitutional right to privacy.
In my 2010 article, I analyzed the case of Lawrence v. Texas, 539 U.S. 558 (2003), which held that criminal sodomy statutes violate the right to privacy. That case, while often theorized as based on a fundamental right and an overthrow of all morality-based legislation, is more properly understood as refuting the third leg of constitutional analysis, that being the purported rational nexus between the asserted state interests and the law. In Lawrence, properly understood, the Court found that the state interest in morality did not relate to a law prohibiting private consensual gay relationships. Similarly, in a case involving a transgender student, a key issue that should be brought up in any complaint involving a state actor, such as a public school, is whether there is a rational nexus between regulations, policies or practices that deny the gender identity of a transgender student in regard to forms of address, dress codes, and facilities usage, and the purported state interests that require the denial of gender autonomy to the student.