Although strides had been made in the Obama administration to loosen the legal definition of gender in order to include transgender people, those strides might be lost. President Trump is pushing to redefine the term gender as ‘a biological, immutable condition determined by genitalia at birth’. If this is taken into effect, it will drastically harm transgender individuals by not protecting them under any Title XI laws. This would leave them open to various forms of discrimination in the workplace and beyond. Trump has also been attempting to bar transgender individuals from serving in the military. These political moves can harm transgender people and push them even further into the margins of society.
Research
Research Based Opinion Piece on Transgender Children Now
Being a Transgender Child in 2018
Transgender issues have been discussed in greater depth since 1980, and some strides have been made, however there are still many challenges that face transgender individuals. A study conducted by GLSEN’s fifth National School Climate Survey found that only 16% of the time school personnel interfered when homophobic remarks were made. Whereas when sexist and racist remarks were made they interfered 33% and 54% of the time. Furthermore, they found that 65% of transgender students felt unsafe in school due to their sexual orientation. This is a huge number, no child should feel unsafe to go to school, especially due to their gender or sexual identity. Harassment is still occurring in schools, the study found that 87% of transgender students had been verbally harassed due to their sexual orientation or gender expression. Even more upsetting is that 55% of transgender students had been physically harassed in school for the same reasons. Despite the passage of time between 1980 and 2018, transgender students are still being harassed at an alarming rate.
However, laws have been passed to try and advocate for transgender people. There are now laws that call for neutral gender bathrooms, that any individual is allowed to use regardless of their gender. This can help transgender people feel more comfortable going to the restroom, without fear of being yelled at for using the ‘wrong’ one. There is also legislation supporting equal opportunities for transgender student athletes, that allows them to play on the sports team of their gender identity. This can help them form bonds with their teammates and feel more accepted at their school. Also, in 2016 the U.S. Department of Education passed a law that states that single-sex schools and schools receiving federal money have to treat transgender students consistent with their gender identity, helping them to feel comfortable.
“On the Team: Equal Opportunities for Transgender Student Athletes.” National Center for Lesbian Rights, 11 June 2014, www.nclrights.org/legal-help-resources/resource/on-the-team-equal-opportunities-for-transgender-student-athletes/.
“Championing LGBTQ Issues in K-12 Education since 1990.” GLSEN, www.glsen.org/sites/default/files/Harsh Realities.pdf .
Research Based Opinion Piece on Transgender Children in 1980
Being a Transgender Child in the 1980’s – Janet Mock’s Experience
Janet Mock grew up in Hawaii and California during the 1980’s as a part black, part Hawaiian transgender women. From an early age she knew that she was different but couldn’t quite understand how. Growing up, she was teased by classmates, and even her father, for being different and acting like a girl. After telling her classmates and teachers to call her Janet, “I can still feel the sting of my chemistry teacher purposefully calling out “Charles” every morning during roll call, to the giggles of my peers. To add insult to injury, she repeatedly mis gendered me, deliberately referring to me as “he” and “him” and reusing to reprimand bullies who interrupted class by shouting, “I can see your balls!” or “How big are your tits now?” Instead of taking a leadership role and proclaiming that intolerance wouldn’t be tolerated, she chose to turn a blind eye to insults, going as far as blaming me for putting a target on my own back for dressing the way I did. She viewed my femininity as extra, as something that was forced and unnatural” (Mock 147). Teachers set the tone in a classroom, and by purposely ignoring the students teasing and mis gendering her, the teacher set a tone of disrespect and non-acceptance.
During the 1980’s, transgender issues were not discussed as often as they are now, and there were no gender neutral bathrooms or dress codes. This meant that choosing which bathroom to use was up to the child, but the school was allowed to punish them for using the ‘wrong’ restroom. This could be very traumatizing to a young child who is trying to figure out who they are. Dress codes were also very strict, and Janet Mock would repeatedly get in trouble for wearing clothes that were ‘inappropriate’ for a boy. These strict rules are harmful to transgender students because it impresses upon them the idea that they are ‘wrong’.
“Redefining Realness – A Trans Girl’s Memoir.” Janet Mock, janetmock.com/redefiningrealness/.
What is Title IX?
Title IX was put into law by President Nixon as part of the Higher Education Act of 1965. It outlaws discrimination against students on the basis of sex by institutions receiving federal funding, with a number of exemptions to the law (including religiously affiliated institutions for which the guidelines would be inconsistent with the religious tenets of such organization, boy/girl conferences, gendered organizations, military training schools).
In 2016 the Obama administration sent out a “Dear Colleague” letter which acts as an interpretation of Title IX for schools to follow. The “Dear Colleague” letter specifically addresses protection for transgender students covering the correct use of pronouns, name, confidentiality of a trans student’s situation, and bathroom access. It is notable that this was all covered without the need of a medical diagnosis of dysphoria. This allows all students, no matter their access to a doctor willing to diagnose them, to get these protections (Lhamon and Gupta). However, the 2016 “Dear Colleague” letter was never an official law, but rather an interpretation of Title IX: “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations” (Lhamon and Gupta). These protections relied on either schools complying on their own or students and parents to sue and win in a court of law. They were never something that the president could enforce; merely suggest with the understanding that the courts would back him up. The guidance has been since withdrawn by the Trump administration. The National Center for Transgender Equality states that while Trump’s withdrawal of the 2016 Dear Colleague Letter “does not change any of your rights under Title IX, it does mean that the Department of Education might not investigate or respond to complaints from transgender students or enforce the law as fully as they should” (“Know Your Rights: Schools”).
Title IX is the farthest reaching and most influential sexual discrimination law in the U.S., which is why, although there are many local and state level laws protecting trans students, I want to talk about this one. For many trans kids, title IX is the law protecting them, and what was protecting them was not even really the law itself. Many people disagreed with this reading of Title IX because the language of Title IX is forty years old and does not recognize a difference between sex and gender. As such, you could read Title IX either way. It is a law that means to protect and treat all students equally no matter what their gender, but it also does not apply to single gender institutions (such as the boy scouts) and does not require schools to unify sports teams into one ungendered and unbiased sports team, which you could say is an extension of providing cisgender students with safe single gender space. You could also say that the letter of the law says that discrimination on the basis of sex is illegal, but these are transgender issues. In one of the cases where Title IX’s trans* protections came into question, the school board “had argued in essence that its policy was valid because Title IX allows for claims only on the basis of sex, rather than gender identity, and that its policy did not violate the equal protection clause” (The New York Times). I would argue that the spirit of the law supports is one of inclusion, but Title IX was not made in our time, and strict readings of it could go either way depending on what outcome a judge or school wanted. Which is why Obama’s 2016 Dear Colleague Letter was so important, it was specific and told trans Americans that the justice department recognized the ambiguity of the law in its modern context.
Despite its shortcomings, Title IX is better than nothing. While Title IX has been around since the 60’s, it has only recently been interpreted as a gender equality law (as opposed to a sex equality law) and through it a number of transgender students have successfully sued their schools for failing to protect them. And thus only recently made their schools a safer place for trans students who before would have no expectation that their schools must legally protect them.
Works Cited:
Gordon, Demoya. “Lambda Legal Applauds New Federal Guidance on Transgender Students’ Access to Bathrooms.” Lambda Legal, 13 May 2016. https://www.lambdalegal.org/blog/20160513_new-guidelines-trans-bathrooms. Accessed 1 Dec. 2018.
“HOW THE LAW PROTECTS LGBTQ YOUTH.” Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/youth-how-the-law-protects. Accessed 1 Dec. 2018.
Lhamon, Catherine E., and Vanita Gupta. “Dear Colleague Letter on Transgender Students.” U.S. Department of Justice and U.S. Department of Education, 13 May 2016. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Accessed 1 Dec. 2018.
“OVERVIEW OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, 20 U.S.C. A§ 1681 ET. SEQ..” The United States Department of Justice, Updated August 7, 2015. https://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq. Accessed 1 Dec. 2018.
“Title IX Protections for Transgender Students.” Find Law, https://education.findlaw.com/discrimination-harassment-at-school/title-ix-protections-for-transgender-students.html. Accessed 1 Dec. 2018.
Stevens, Matt. “Transgender Student in Bathroom Dispute Wins Court Ruling.” The New York Times, 22 May 2018. https://www.nytimes.com/2018/05/22/us/gavin-grimm-transgender-bathrooms.html. Accessed 1 Dec, 2018.
The Effect of Title IX: Why it’s important.
A teacher sets the tone in the classroom by ensuring that misuse of names and pronouns is not tolerated and that harassment and name-calling will be grounds for discipline…I can still feel the sting of my chemistry teacher purposefully calling out “Charles” every morning during role call, to the giggling of my peers. To add insult to injury, she repeatedly misgendered me, deliberately referring to me as “he” and “him” and refusing to reprimand bullies who interrupted class by shouting “I can see your balls!” or “How big are your tits now?”…My teacher’s judgments fostered an environment that became increasingly uncomfortable for me daily… It’s no wonder nearly one-third of LGBTQ students are driven out of school. (Mock, 147-8)
As Janet Mock said in Redefining Realness, the way the school treats transgender students sets the precedent for the way the other students get to treat them. When a school or its faculty dead-names a student, or makes them use a bathroom that doesn’t align with their gender identity, it is a message to the students that they do not need to respect that student’s identity. Bullying, harassment, and assault result from a school’s failure to address discrimination in their policies because a school’s discrimination sets the standards for its students’ behavior. Laws can set the social standards.
With regards to general bullying in schools, the Arne Duncan from the U.S. Department of Education stated in 2015, “As schools become safer, students are better able to thrive academically and socially” (“New Data Show…,” 2015). The report further stated that “Research shows that students who are bullied are more likely to struggle in school and skip class. They are more likely to abuse drugs and alcohol, be depressed, and are at higher risk of suicide.” They then list what the Department of Education has done to help decrease bullying in schools; and what’s the first one they mention? “Issuing four Dear Colleague Letters on harassment and bullying, gay-straight alliances, and bullying of students with disabilities.”
The Department of Education recognizes that protecting LGBT students helps students achieve more, because they recognize the role law plays in cultural perception. And not only a law, but a specific law that specifically protects trans* students’ identity, bathroom accessibility, and their confidentiality. A generation ago, there was no laws protecting trans* students, and what there was of Title IX you could have used against trans* students’ rights and as such trans* kids suffered. In her memoir, Redefining Realness, Janet Mock documents years of bullying both from students and from faculty. She tells of how the school she was in used the dress code to demonize her body, and of how they damaged her education both by sending her home from school over and over again and by making school a traumatic place. Forcing her to choose between an identity she could not avoid (especially at such a pivotal time in her hormonal transition) and her education, and this struggle is not over, but it is so much better thanks to laws at the state and Federal level.
Federal laws like Title IX, and the interpretation of it in the 2016 “Dear Colleague Letter,” told schools that trans* students have rights. It set a standard for the culture in America, much like these laws set a culture in the schools, which said that America, as an institution and a nation, recognizes the personhood and gender identification of trans* students. And it doesn’t just protect trans* students’ personhood fully transitioned, but throughout transition. The “Dear Colleague Letter” specifically outlines that it seeks to protect students no matter their medical record or official diagnosis for gender dysphoria, which says to me that it doesn’t identify trans* as transitioned; students’ whose identities are validated by their ability to pass and by a happy home life. The Obama Administration went out of its way to protect students’ learning environment and ability to self identify no matter their ability to transition which helps protect poor trans* students who may not be able to get a diagnosis and are less likely to be able to have their gender validated outside of school.
As a presidential candidate, Donald Trump presented himself as a social liberal seeking to move Republicans left on LGBT rights. (Chip Somodevilla/Getty Images)
The “Dear Colleague Letter” was rescinded by the Trump administration in 2017. Without federal protection, trans* rights goes down to state laws, and, according to the Human Rights Campaign, only 15 states have explicit laws on the books. In one state you could be a person, and in another you could be the problem, which means that many trans* kids are still fighting the same battle. Supporters of the administration’s withdrawal, say that they seek to protect students from people who might abuse the system for their sexual urges. And it makes sense that it’s this law they attacked. However it doesn’t make sense for the reasons they stated. Title IX’s trans* protections were the most vulnerable because they weren’t a law, but you know what also wasn’t a law that they rescinded around the same time as the 2016 letter? The 2011 and 2014 letters about a school’s duty to respond to sexual assaults. It is clear that the removal of the trans* protections is not about protecting cis-students (specifically young white women and girls), because if that’s what they wanted to do they wouldn’t have removed the sexual harassment protections which gave young women a clear route to report the kinds of things proponents against trans* bathroom access say trans* students will do. The Trump administration, and supporters of the withdrawal do not want to protect students against sexual assault. They want to enforce an easily identifiable binary that can be regulated by medical and governmental institutions. And I understand that instinct; to want to be sure that these students are trans* and ready to make their transition. But when you really think about what that would mean, you realize that it alienates the students who are most vulnerable to harassment: the poor students who don’t have access to the kind of resources to make a seamless transition.
But there was that moment. That moment when the highest offices of the country put their foot down and said that it was not okay to discriminate against trans students. Gavin Grimm told the Washington Post about the Title IX protections: “It certainly bolstered hope that the future for transgender students was looking up in a way that it hadn’t been previously.” Grimm started his lawsuit against his school in 2015, and this year he finally won his case because of Title IX. Even though the official statement has since been withdrawn, Federal appeals court had something to look back on in the case: “In ruling for Grimm and against the school district, the court deferred to the Obama administration’s interpretation of Title IX” (CNN).
Works Cited:
de Vogue, Ariane et al. “Trump administration withdraws federal protections for transgender students.” CNN, 23 Feb. 2017. https://www.cnn.com/2017/02/22/politics/doj-withdraws-federal-protections-on-transgender-bathrooms-in-schools/index.html. Accessed 1 Dec. 2018.
Gordon, Demoya. “Lambda Legal Applauds New Federal Guidance on Transgender Students’ Access to Bathrooms.” Lambda Legal, 13 May 2016. https://www.lambdalegal.org/blog/20160513_new-guidelines-trans-bathrooms. Accessed 1 Dec. 2018.
“HOW THE LAW PROTECTS LGBTQ YOUTH.” Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/youth-how-the-law-protects. Accessed 1 Dec. 2018.
Jackson, Candice. “Dear Colleague Letter on Campus Sexual Misconduct.” U.S. Department of Education, 22 Sept. 2017. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=. Accessed 1 Dec. 2018.
Lhamon, Catherine E., and Vanita Gupta. “Dear Colleague Letter on Transgender Students.” U.S. Department of Justice and U.S. Department of Education, 13 May 2016. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Accessed 1 Dec. 2018.
Mock, Janet. Redefining Realness: My Path to Womanhood, Identity, Love & So Much More. Atria, New York, 2014.
“New Data Show a Decline in School-based Bullying” U.S. Department of Education, 15 May 2015. https://www.ed.gov/news/press-releases/new-data-show-decline-school-based-bullying. Accessed 1 Dec. 2018.
“OVERVIEW OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, 20 U.S.C. A§ 1681 ET. SEQ..” The United States Department of Justice, Updated August 7, 2015. https://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq. Accessed 1 Dec. 2018.
“Q&A on Campus Sexual Misconduct.” U.S. Department of Education, Sept. 2017. https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=. Accessed 1 Dec. 2018.
“Title IX Protections for Transgender Students.” Find Law, https://education.findlaw.com/discrimination-harassment-at-school/title-ix-protections-for-transgender-students.html. Accessed 1 Dec. 2018.