On November 20, communities around the world gathered to honor the lives of the 331 transgender people who were murdered in the past 12 months. Of the 30 who died in the United States, and for those cases in which there are details, almost all were trans women of color and the overwhelming majority were under the age of 30.
There has been little movement, structurally and politically, to end what the American Medical Association recently declared an epidemic of violence against transgender people in the United States. There has been far more public and political focus on bathroom access than murders—and while some have argued that more pertinent safety issues should be attended to, conversations and proposed legal changes about gender-neutral bathrooms do often stem from bias and exclusion experienced by trans youth at school. Violence and harassment targeted at trans people doesn’t start in their adulthood—it begins and builds where socialization occurs: in the classroom and on campus.
According to the Gay, Lesbian, and Straight Education Network (GLSEN) 2017 Annual School Climate Survey, more than 75 percent of high-school aged LGBTQ students report having felt unsafe at school, and those who experience higher levels of victimization based on gender expression are twice as likely to report that they do not plan to attend college. Those who enroll and attend are nine times more likely to experience sexual violence victimization and six times more likely to experience a sexually abusive intimate or dating relationship. Nearly half of enrolled trans students report feeling regularly depressed.
The expansion of protections for transgender students is fairly recent in U.S. history. In May 2016, the U.S. Department of Education (DOE) under the Obama Administration issued guidance to public school districts across the country to clarify that trans students were, too, protected from discrimination, bullying and harassment in school under Title IX of the Education Amendments Act of 1972, which prohibits sex-based discrimination in educational institutions that receive federal funding. Less than a year later, the Trump administration came into power and rescinded this guidance.
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Civil rights groups indicated their worry early on that Title IX guidance changes would lead to increased bullying and harassment of trans students. Since the protections were removed in January 2017, Betsy Devos’ DOE has dismissed every Title IX case brought to them about transgender students’ rights for in school bathroom access.
In the era of the Trump administration, though, this is not surprising. According to the National Center for Transgender Equality, since January 2017, there have been more than 60 administration actions that serve to erase trans people’s experiences with discrimination and violence, while simultaneously inhibiting their access to services such as health care. In its trend report from November 2019, the Sunlight Foundation’s Web Integrity Project found that more than 50 percent of government webpages mentioning LGBTQ-related terms had been altered or erased, with a 40 percent decrease of the word “transgender” on HHS.gov webpages.
These rapid changes have led to confusion on what protections exist to keep trans people—and especially trans students—safe. Indeed, educational institutions continue to debate the validity of these students’ identities and if they deserve equal access to learning and living facilities.
But there are other policy and provision changes to Title IX currently proposed that go beyond rescinding transgender inclusion from guidance documents. Devos’ DOE is looking to change the language at the very center of the amendment: its definition of the word “harassment.”
Currently, Title IX states that harassment is considered behavior so “sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” In 2018, the current administration proposed a new definition: harassment is “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
This change may seem slight, but specifying “sex” as the basis for discrimination in Title IX aligns with the administration’s arguments in current cases being heard by the U.S. Supreme Court, on whether or not “sex”-based discrimination includes transgender people.
In October, the Supreme Court heard oral arguments for three cases on Title VII of the Civil Rights Act of 1964, which bans workplace discrimination on the basis of sex. One of these cases is centered around Aimee Stephens, a trans woman who was fired, according to a lower court ruling, as a direct result of her employer’s prejudicial and discriminatory conception of “sex” and what a woman should be. In other words, Stephens was fired for her “failure to conform” to a gender stereotype.
If the Court rules in favor of the administration’s position—that transgender people are not protected under the Civil Rights Act of 1964—a downpour of narrowly construed policy changes could follow.
Sex most typically refers to the labels “male” and “female,” though approximately 0.1 percent of babies are born intersex. For some, the sex a doctor assigns at birth aligns with one’s internal sense of self (e.g. cisgender people) and for others it does not (e.g. transgender people). The administration’s position would mean trans people would have no way to utilize Title VII for workplace anti-discrimination protections unless it were explicitly and clearly on the basis of their sex assigned at birth.
This case is bundled with two others that attempt to argue that sexual orientation is also protected under the Civil Rights Act of 1964. In all three, the argument being made by the plaintiffs is that the bias and discrimination LGBTQ people face is linked to social stereotypes and perceptions about what is and is not “normal” or appropriate for their sex assigned at birth.
A Court decision that supports the administration’s understanding of sex under the law would render LGBTQ people at the mercy of state and local protections, which are few and far between. Currently, only 21 states and Washington D.C., as well as the U.S.-claimed islands of Guam and Puerto Rico, have LGBTQ employment discrimination protections in place. A broad application of the language in the decision could also overflow beyond workplaces and into all institutions governed by their own “sex-based” laws.
One of those is public schools and the provision of Title IX protections.
If the Court rules in favor of Stephens on Title VII, definitively and legally affirming that gender identity is protected within the language of sex-based discrimination, then Title IX would have to protect transgender students regardless of any language change on the part of the current administration.
More explicitly, if the Supreme Court rules that gender identity is sex, then even a Devos-led Department of Education that considers Title IX harassment to be “unwelcome conduct on the basis of sex” would have to take on and defend cases brought my trans students.
But, if there is a broad decision that upholds that gender identity is not the same as sex—e.g. a judicial ruling that is intended to provide guidance in related contexts—then Title IX would be determined to almost never apply to the harassment, assault, and violence that students experience because they are trans.
Transgender and gender-nonconforming (TGNC) students would be forced to navigate claims under the rubric of sex-based discrimination, requiring them to have experienced discrimination on the basis of their sex assigned at birth. Most often they are experiencing harassment based on gender identity, stereotypes, and stigma related to being trans—and research confirms that sexual harassment, sexual assault, and dating violence disproportionately affect TGNC students in both undergraduate and graduate settings.
The proposed language changes to Title IX don’t hinge on the Court decisions, but they would bolster the policy changes and enmesh them into civil rights law. In a speech on November 13, Secretary Devos called the proposal an attempt to improve Title IX and better determine which cases are “real” or legitimate, and which are not. “Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is,” she said.
But, according to the 2019 Association of American Universities Campus Climate Survey, the majority of transgender college students do experience harassment. Many need protection from peers, professors, employers, and intimate partners, and trans students are specifically more likely to fear that contacting school officials and filing Title IX incident reports won’t be helpful because they don’t believe the resources would help them. The survey also found that nearly all of the TGNC students in the study reported emotional consequences from violence experienced in school, like fear for their safety or feeling numb and detached. Academic consequences were common.
Some have suggested that new standards would mean students turn instead to civil litigation to get their safety needs met. This creates cost barriers for students, as trans people are more likely to live in poverty. They may also hesitate because of the criminal-legal hurdles related to gender documentation, transphobia in the judicial system, and an inability to find LGBTQ-friendly and knowledgeable legal advisors or attorneys.
With less government insight into college mishandlings of Title IX cases, an additional factor in Devos’ Title IX plan, there may also be less financial incentive for colleges and Title IX coordinators to develop and ensure cultural competency and equitable treatment of TGNC people within these processes.
The administration’s plan would only penalize colleges that fail to do anything at all, meaning that if colleges enforce changes or give any attempt to remedy sexual harassment or other forms of sex-based discrimination, they will be deemed by the government to have done their due diligence—even if their decisions and processes are harmful to some students involved.
Even without Title IX changes formally installed, this pattern is already in place: In a July 2019 report, the Center for American Progress analyzed over 8 years of sexual orientation and gender identity cases handled by the Office for Civil Rights (OCR) at the DOE and found that under Trump “complaints were more than nine times less likely to result in corrective action [by the DOE] than they were under the Obama administration.”
So, what happens, then, when trans students turn to Title IX but don’t feel the school is doing its job, or Title IX no longer applies to trans students, or they aren’t able to find, afford, or pursue protections through civil litigation? Research indicates they’re less likely to report harassment, more likely to suffer the negative mental health, academic, and professional consequences, and more likely to drop out.
Certainly, colleges and universities could do more to ensure trans students have safe, nonviolent, and equitable access to higher education. Trans and gender-nonconforming college students also enter higher education with a history of traumatic victimization from other sources. In order to protect them, colleges should amend their own sexual harassment policies to be trans-inclusive in specific and intentional ways, regardless of Supreme Court rulings or Title IX policy language changes. While op-eds by LGBTQ upper administration and college presidents are nice, they are nothing more than lip service without real policy change.
Other necessary supports include campus nondiscrimination policies that cover gender identity and expression; officially recognized LGBTQ campus organizations; gender-neutral housing options; sustained and regularly updated cultural competency training for staff and faculty; and using pronouns and names of choice. And it wouldn’t hurt to support federal legislation like the Equality Act and the Safe Schools Improvement Act in Congress, and state-level student nondiscrimination and anti-bullying laws.
Transgender students face an uphill battle for recognition and safety, and not all will stay enrolled in school to face the harassment, bias, and bullying. For those who don’t graduate, they enter a world that is difficult to succeed in without a degree and even harder when you’re trans. The general lack of job, housing, and health-care protections also contribute to the higher rates of poverty, homelessness, and incarceration that trans people experience. It is how the issues of the school-to-prison, school-to-institutional care, and school-to-street pipelines begin. Schools and institutions of higher education are one of the last lines of defense against the rising tide of violence, and they have an affirmative responsibility to protect trans students.