Massachusetts Adds Transgender Protection to Antidiscrimination Laws

In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.

Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.

Women's College in Virginia Has Policy to Expel Transgender Students

Hollins University, a private, women's college in Virginia, is in the news this week for its policy to expel transgender students who "self-identify" as male and have taken one of the following steps towards transitioning to the male sex: "1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male, or 3) changes her name legally with the intent of identifying herself as a man." This is an unfortunate policy because it denies compassion and withholds tolerance to students who may need them most. Instead, it places transgender students in difficult position of having to choose to either uproot themselves from their education and community, or else suppress and deny their deeply-felt identify.

Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).

The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."

As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 U.S.C. 1681(a)(1) ("in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.

I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.

NCAA Adopts Policy for Including Transgender Athletes

The NCAA has approved a policy to govern athletics participation by transgender athletes who have transitioned to another sex. The new rule, which takes immediate effect, allows a transgender athlete who has transitioned from male to female to participate in women's sports after one year of hormone treatment that includes female hormones (estrogen) and agents that suppress the effects of male hormones in the body (testosterone blockers). The rule also clarifies that athletes who transition from female to male by taking testosterone are not eligible for women's sports, but may receive a therapeutic use exception* and be eligible for men's sports. A transgender athlete who transitions socially but not physically is still eligible for the sport that matches their birth sex. For example, Kye Allums plays women's basketball for George Washington, even though he goes by "he" as has not undergone any physical transition that involves testosterone.

The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.

*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.

Title IX and Transgender Students at Single-Sex Colleges

Inside Higher Ed recently had an article about transgender students at single-sex colleges. Like this piece in the Boston Globe a few years ago, the article addresses the increasingly common practice of re-issuing diplomas to reflect the new names and gender identities of alums who transition after graduation. Deciding who to admit, however, is a more challenging issue for single-sex colleges. Most women's colleges consider any student who is female on their application to be eligible for admission, and have no policy of excluding anyone who transitions or declares a non-female gender identity once enrolled.

The article mentions the role of Title IX in this regard, stating that under the law, "men’s and women’s colleges may admit only students whose legal documentation shows they are of the gender that a particular institution serves." I think this representation of Title IX is questionable, however, as I'm not aware of any aspect of the law that invokes a "legal documentation" test for determining a person's sex. Such a standard would not exactly provide workable clarity, either, because some states make it easier to change one's sex designation than others. Moreover, the decision to apply for new ID may come at different stages of transition for different folks. So, a "legal ID" test would require an all-women's school to consider for admission an individual who has surgically and hormonally transitioned from female-to-male, but who hasn't yet applied for, or received, a re-issued birth certificate (or drivers license, or some other legal ID). And that school would have to exclude someone who has changed his sex designation, but not his body, in accordance with a male gender identity, as well as someone who has physically transitioned from male-to-female but still does not have a female gender marker on her ID.

No court or regulatory interpretation has endorsed such bright-line rules. And I think the law's indeterminacy around the concepts sex and gender allows all of these hypothetical students make a case for eligibility for admission. A court could interpret Title IX's prohibition on sex discrimination to forbid a school from discriminating against someone who is born female but presents as male, if it decides to interpret presenting/identifying as male as an example of gender nonconformity. A court could also interpret Title IX's prohibition on sex discrimination to require an all-women's school to consider a male-to-female transsexual, because she, like other people who identify as female, is a woman. If both were legally required, an all-women's college would be open to anyone who is now female or who has been female in the past.

Is that a position that all-women's college could defend? This depends on the reasons all-women's colleges provide for remaining single-sex in the first place. If the purpose of all-women's college is to compensate for the male privilege that exists in education and in the wider world, they could certainly accept male-to-female transsexual students on the grounds that they have reduced their access to male privilege by virtue of their transition, as well as female-to-male transsexual students, who have been excluded from male privilege in the past. (For example, a female-to-male engineering student does not by virtue of a college-age transition overcome gender stereotypes that may have obstructed his K-12 education in science in technology.)

The bottom line for now, however, is one the article gets right. College admissions policymakers, like Title IX policymakers will be increasingly confronted with questions about transgender students' eligibility for single-sex colleges and other single-sex spaces. In my view, they should and can legally strive to be as inclusive as possible.

First transgender prom queen

This is not directly a Title IX issue, but it's good news during prom season when we seem to only hear stories about how students who are gender non-conforming have their proms marred by administrators, parents, and other students who are apparently very concerned with who gets to wear tuxes and who gets to wear dresses.
This week the first transgender student (MTF) in an American public school was crowned Prom Queen. Andii Viveros was voted Prom Queen at McFatter High School in Florida after beating out 14 other young women for the title. There was a movement to remove Viveros from the ballot, but Viveros, president of the school's GSA, wrote a speech to explain her* position.



* The article refers to Viveros with male pronouns, I chose to use female pronouns because the article mentioned that Viveros has been living as a woman for two years.

Article Seeks Title IX's Application to Transgender Student Harassment

A law student's article in the Texas Review of Law and Politics Journal seeks to leverage Title IX's prohibition on sex discrimination to offer fully protection against harassment to transgender students. Citing statistics from GLSEN, the author, Tina Sohaili, points out that transgender are the targeted for bullying and harassment more frequently than any other student group. Such harassment frequently target the students' personal characteristics, such as appearance, clothes, and voice, as not matching the masculine or feminine stereotypes associated with the transgender students' assigned sex.

Drawing on analogous employment discrimination law, Sohaili argues that the liability Title IX imposes on school districts that ignore sexual harassment between peers covers peer harassment motivated by transgender students' gender nonconformity. She supports this argument by pointing out that some lower courts have already recognized harassment on the basis of gender nonconformity a subset of sex discrimination in cases that do not involve transgender students.

Importantly, while Sohaili argues that courts should construe Title IX to afford this protection to transgender students, she recognizes that courts have not universally recognized sex discrimination law's application to gender nonconformity in the employment context. Therefore, while this interpretation affords the best protection to transgender students under federal law, even stronger protection would result from changes to the law -- such as that proposed in the Student Nondiscrimination Act -- which expressly prohibit discrimination on the basis of not only sex, but actual or perceived sexual orientation, gender identity, or expression.

Citation: Tina Sohaili, Securing Safe Schools: Using Title IX Liability to Address Peer Harassment of Transgender Students, 20 Tex. Rev. L & Politics 79 (2011).

Report Urges Equal Opportunity for Transgender Athletes

The National Center for Lesbian Rights and the Women's Sports Foundation recently teamed up to tackle the barriers transgender student athletes face when seeking to participate in sex-segregated sports. A report released this week, authored by NCLR's Helen Carroll and WSF/It Takes A Team emerita Pat Griffin, provides guidance, in the form of policy recommendations and best practices, to high schools and colleges regarding this issue. The report is timely and necessary, as transgender athletes may be effectively excluded by the absence of any such policy, and in other cases, directly excluded by policies that do exist. Under the policy of the Connecticut Interscholastic Athletic Association, for example, transgender athletes may compete with the sex that matches their gender identity only if they comply with the same standard that the International Olympic Committee uses for this purpose -- a very high standard that requires legal sex change, sex reassignment surgery, hormone treatments, and a two year waiting period. At the high school level, very few students are likely to have the time and resources to comply with these requirements within the period of time of high school eligibility, let alone a medical diagnosis that warrants irreversible surgery at such a young age.

In contrast, the report urges all state interscholastic agencies to adopt a policy of inclusion modeled on the one adopted by the Washington Interscholastic Athletic Association two years ago. The WIAA's policy allows students to participate in the sports for whichever sex the student consistently identifies. A liberal participation policy ensures that all students have access to the educational benefits provided through athletics, and reflects the wide variation that already exists within the sexes, particularly among youth.

For college athletics, the report recommends a policy that focuses on a particular medical aspect of a transgender athlete's transition to the opposite sex: hormone treatment. Under the prescribed policy, a transgender athlete transitioning from male to female may compete in women's sports after a one year of taking estrogen and androgen blockers. (Such an athlete may continue to participate in men's sports during that one-year period, and even afterwards if she so chooses.) This policy reflects scientific research suggesting that most relevant sex-based physical differences are materially reduced or eliminated by such treatment. For the opposite reason, an athlete transitioning from female to male may not compete in women's sports after testosterone treatments have begun.

Significantly, neither the recommendation for high school or college athletics borrows from the IOC's surgical requirement, deemed overly-restrictive and, in light of hormone requirement, unnecessary to reduce sex-related physical differences between the sexes. The proposed policies also differ from existing ones by spelling out an athlete's right to appeal any challenge to their participation, ensuring confidentiality, and addressing collateral issues such as locker rooms, uniforms, and hotel room assignments. With regard to the latter issues, the policy takes the position that a transgender athlete ought to be treated like any other athlete of his or her transitioned sex. It smartly goes on to say that teams should support and seek to accommodate any athlete with privacy concerns, not just transgender athletes.

In sum, the proposed policies are appropriately focused on inclusion, and incorporate a well-researched position on the limited degree to which physical differences create competitive advantages, as well how such differences, when they tend to be more relevant, are moderated by hormone therapy. I hope that it gains traction among state athletic associations and college associations like the NCAA, and I am optimistic that this will be the case. Significantly, the report authors got input from athletic administrators in addition to the scientists and legal experts they also consulted.

Ninth Circuit Affirms Ruling Against Transgender Plaintiff in Bathroom Discrimination Case

The Ninth Circuit Court of Appeals affirmed a lower court's ruling that dismissed plaintiff Rebecca Kastl's lawsuit against Maricopa County Community College. Kastl, who is transsexual, was a MCCC student and instructor, and sued the college in 2002 after it banned her from using the women's restroom and subsequently decided not to renew her contract. Kastl argued that these decisions constituted unlawful sex discrimination under the Equal Protection Clause, Title VII, and Title IX, but the lower court dismissed her suit. In affirming that decision, the Ninth Circuit acknowledged that it recognizes that, under the Price Waterhouse doctrine, discrimination against a transgender plaintiff for failing to conform to gender stereotypes is a form of sex discrimination prohibited by law. However, the court determined that the college did not ban Kastl from the women's restroom for discriminatory reasons, but rather, for permissible "safety concerns." Since Kastl did not allege that those safety concerns were actually pretext for a discriminatory motive, she did not make out a sufficient case for sex discrimination, the court reasoned.

Unfortunately, it appears that the district court's decision, and as a result, the parties' briefs on appeal, focused on the first question -- whether and under what theory Kastl is protected under antidiscrimination law at all, and not the "safety concern" alternative rationale offered by the college. I could not find where or whether the courts examined or the parties briefed the safety issue, which did not receive more than a sentence in the appellate court's opinion. It certainly seems arguable (if not obvious) that safety is a pretext for the college's discomfort with the plaintiff's transsexuality, especially if there is no evidence that the plaintiff's presence in the women's bathroom actually did threaten the safety of other women who were there. As a result, I am disappointed that the court didn't explain this aspect of the decision more fully. The decision reads as if the court -- like Maricopa County Community College, perhaps? -- is trying to avoid having to engage in any meaningful analysis over the hard and uncomfortable questions raised by the case.

Decision: Kastl v. Maricopa County Community College District, 2009 WL 990760 (9th Cir. Apr. 14, 2009).

Transgender Student's Discrimination Case Under Investigation

The Pennsylvania Human Relations Commission is investigating a discrimination complaint against Harrisburg Area Community College that was filed by a former student, Jamie Nicole Anderson. According to this article about case, Anderson is a 42-year-old ex-Marine who had a 3.8 GPA at HACC, where she was pursuing an x-ray technician degree. In May she underwent "a sex change operation" and "that's when the trouble started."* She was harassed by clinical instructors who referred to her by male pronouns -- in contrast to her patients, who always called her ma'am. Despite her efforts to seek support and assistance from program directors and the instructors' supervisors, she claims, HACC's response was half-hearted and consequently, ineffective. In October, HACC suspended her for using the women's restroom. Later that month, she was expelled for violating the dress code policy that forbids students from wearing more than one earring in an ear. It seems unlikely to me that all students who accidentally wear an extra earring are expelled, so I am guessing PHRC will examine whether Anderson was singled out for an unusually harsh punishment for discriminatory reasons.

PHRC enforces the Pennsylvania Fair Educational Opportunties Act, which prohibits schools from discriminating against students on the basis of "race, religion, color, ancestry, national origin or sex." It is unclear from PHRC's published materials and decisions whether it considers sex discrimination to include discrimination on the basis of gender identity. Perhaps the results of this case will be informative on that issue.

* I'm direct quoting the article here because it seems unlikely to me that discrimination against Anderson "started" when she had sex reassignment surgery. Anderson must have been taking female hormones and living full time as a woman prior to that time. Surely these outward gender markers would have made her a target for discrimination more so than the status of her anatomy.

Court Dismisses Trangender Plaintiff's Bathroom Complaint

A federal court in Nevada recently dismissed a Title IX case brought by the parents of a preoperative male-to-female transgender student (referred to in the decision as "Mary Doe") that challenged the school's decision that would have prohibited her from using the girls' restroom. Apparently (the decision does not provide a detailed factual account of what happened) the plaintiffs considered enrolling their daughter at Green Valley High School near Las Vegas, Nevada, but chose not to after the principal informed them that Mary would not be allowed to use the girls' restroom. Instead, the private bathroom in the nurse's office would be available instead.

The court found numerous weaknesses in the plaintiffs' case. First, it said that because the plaintiffs' did not enroll their daughter in GVHS, no discrimination or injury actually occurred. Second, it concluded that plaintiffs could not bring an Equal Protection claim against the school district because Title IX provides the exclusive remedy for such claims (similar to another decision we blogged about recently). Third, with respect to the plaintiff's Title IX claim, the court expressed doubt that Title IX covers bathrooms because the statute's scope is limited to educational programs. And fourth, even if Title IX does apply to bathrooms, the court determined that discrimination did not occur because a bathroom (in the nurse's room) would have been available to Mary Doe had she enrolled.

I have a big problem with the court's suggestion that Title IX does not apply to school restrooms. Clearly bathrooms on school grounds are part of an educational program. The court cites a Ninth Circuit case suggesting that it's appropriate for courts to make an "actual determination as to whether the relevant portions of a recipient's program is educational in nature." But that was a case about Title IX's application to a prison system's vocational education program. The court there was suggesting, appropriately, that Title IX, an education statute, doesn't govern the entire prison -- just the vocational educational program. To suggest that school bathrooms aren't covered by Title IX because there's not "education" going on in there misses the point of the distinction that the Ninth Circuit was making. It is also ridiculously dismissive of common sense. If a school (or, say, a college engineering building) had no female bathrooms, it would clearly be understood as an indirect exclusion of women from the educational program being conducted in that building, because people need bathroom access so that they can physically be where the education is going on.

Moreover, in determining that the school district did not discriminate against Mary Doe because it made another bathroom available to her, the court fails to consider the possibility that discrimination against transgender individuals is per se discrimination on the basis of sex, and thus prohibited under Title IX. Under such a theory, one could view the exclusion of the plaintiffs' daughter from the girls' bathroom as failure to treat her similarly to all other girls for the sole reason that unlike all the girls, she was born into a male body. As for the nurse's room alternative, the court does not address, nor seem to understand, that this is socially isolating and an affront to Mary Doe's dignity, which as a result is potentially tantamount to an outright exclusion from school.

Most likely the court, and the principal at GVHS, were concerned about the potential that Mary's presence in the girls' bathroom would be disruptive due to her male anatomy. But to the extent this concern is motivated by assumptions, stereotypes, and fear, it is not a valid concern. If the student in question has good behavior generally, why should the school assume that she will be aggressive or harassing or disrespectful in the bathroom? Even if the principal's concern was that the girls will be uncomfortable by the mere presence, however innocent, of a girl with male anatomy (which, I might add, would not be visible to anyone outside whichever individual bathroom stall Mary Doe elects to use), it does not seem that the principal even considered whether these concerns could be mitigated with education about tolerance and acceptance of those who are different before validating them with preemptive exclusion.

Decision is: Doe v. Clark County Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008).

Court Won't Throw Out Transgender Student's Prom Dress Case

Recently a federal district court judge in Indiana refused to dismiss a lawsuit challenging a Gary, Indiana high school's decision to prohibit a male-to-female transgender student from attending the prom in a dress. We blogged about the case here, after it was filed last December. So you may recall that in his senior year at West Side High, the plaintiff, Kevin "K.K." Logan, began wearing women's clothing and accessories to school as a reflection of his gender identity. He maintains, and the school district does not deny, that his manner of dress did not cause disruption to the school and that he was largely accepted and supported by the faculty and peers. Until, that is, he was physically barred from entering the prom by the principal, Diana Rouse. She was apparently invoking School Board Policy #319, which prohibits "Clothing/accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements."

Logan sued the school district claiming that School Board Policy #319 is an invalid restriction on free speech protected by the First Amendment and that the application of the policy to him was discrimination on the basis of sex in violation of Title IX. The school district filed a motion to dismiss both claims, which the federal court denied. The nature of the defendant's motion did not require the court to address the legal merits of Logan's case decision, and the court did not do so. Rather, the court simply noted that the standard for dismissal for failure to state a claim (Rule 12(b)(6)) is a high, and that it would be "premature" to dismiss them at this early stage of the litigation. Notably, however, regarding Logan's First Amendment claim, the court did cite language from appellate court decisions suggesting that courts should not interfere in a school's effort to enforce a disciplinary policy. However, even those cases recognize that the school's policy and its application must be tied in some way to actual discipline -- promoting order and preventing disruption. From the facts of this case, such a purpose is hard to see. After Logan's friends learned that he had been denied entry to the prom, they left the prom to sit with him in the parking lot. This suggests that the policy itself was more disruptive than the ostensible breech.

Decision is: Logan v. Gary Community Sch. Corp., 2008 WL 4411518 (N.D. Ind. Sept. 25, 2008).

Implications for Title IX In Transgender Plaintiff's Victory in Landmark Title VII Case?

Last week a federal district judge in D.C. held that the Library of Congress unlawfully discriminated against Diane Schroer when it rescinded the job offer made to her prior to learning of her plans to transition from male to female. The ACLU attorneys who represented Schroer advanced and prevailed on two theories to explain why she should win under Title VII, the federal statute that prohibits employment discrimination on the basis of sex (among other categories, but not gender or gender identity). First, invoking Price Waterhouse v. Hopkins, in which the Supreme Court held that discrimination on the basis of gender nonconformity constitutes sex discrimination (at least in some cases), they argued that the Library's decision was unlawfully motivated by Schroer's failure to conform with stereotypical male appearance and behavior. Second, they argued that discrimination against Schroer because of her (trans)gender identity directly constitutes discrimination on the basis of sex.

The judge's decision to agree with the ACLU's first argument is good news because it joins and many courts that have read Price Waterhouse broadly to prohibit employers from requiring employees to conform with sex stereotypes, in contrast to some courts that have read it narrowly to prohibit employers from doing so only when the employee's compliance would also result in a negative consequence on the employee. (Adopting this reasoning, a court could hold that Schroer could not recover on a sex stereotyping theory because no negative employment consequence would have befallen her if she had decided to continue to present as David). The more decisions that adopt a broad view of Price Waterhouse, the easier it will be for plaintiffs to argue that those who invoke the narrow reading are outliers.

The court's decision to agree with the ACLU's sex theory is great news because it is the first time a court has held that discrimination against transgender employees is sex discrimination per se. The court used a helpful analogy to explain why this is so. Take an employer who doesn't discriminate against either Christians or Jews, but is biased against religious converts and fires an employee from converting from one to the other. Surely this is discrimination "on the basis of religion." Similarly, the court reasoned, an employer who hires men and women on equal terms, but won't hire a person who is or has transitioned from one sex to the other is discrimination on the basis of sex.

What implications might this decision have for Title IX plaintiffs? Title VII cases are often invoked by courts deciding Title IX issues, so Title IX plaintiffs might invoke the Schroer case to support arguments in support of gender nonconforming and transgender students and student-athletes (especially if Schroer is upheld on appeal, if there is one, or if it is cited favorably by other courts). For example, a plaintiff like Jennifer Harris, who had alleged that she was kicked off the Penn State basketball team for essentially being too butch, could have included this case among others to support her argument that she was penalized for failing to conform to her coach's stereotypes about appropriate dress and behavior for women. Even more significantly, the novel second part of the decision could provide support to transgender students who might want to use Title IX to challenging discrimination in the designation of dorms, facilities (see, e.g.), sports teams, etc., that fail to accommodate them.

Beijing Sex Testing Criticized

Begging your indulgence for a slightly off-topic post, but I am inspired by Colby College professor Jennifer Finney Boylan's insightful op-ed in today's New York Times to address recent reports that Olympic organizers in Beijing will run sex-verification tests on athletes competing in women's events whose female-ness is "suspect."

While the IOC has banned blanket sex-testing and has allowed transsexual athletes who meet certain surgical, hormonal, and legal qualifications to participate in the category of their post-operative sex, Beijing officials recently announced a plans to operate a “gender determination lab” to evaluate athletes' sex based on their physical appearance, hormones, genes and chromosomes.

Boylan, like some of the bloggers who have also criticized the policy (e.g., here and here), points out that gender testing is far more likely to inflict dignitary and emotional harm on those tested -- especially those who test positive for athletically irrelevant anomalies -- than it is to nab any genuine gender impostors, of which there has been only one in Olympic history. Because, like gender itself, gender testing is fraught with ambiguity. After all, Boylan asks, "what makes someone female?":

If it’s not chromosomes, or a uterus, or the ability to get pregnant, or femininity, or being attracted to men, then what is it, and how can you possibly test for it? The only dependable test for gender is the truth of a person’s life, the lives we live each day. Surely the best judge of a person’s gender is not a degrading, questionable examination. The best judge of a person’s gender is what lies within her, or his, heart.....A quick look at the reality of an athlete’s life ought to settle the question.

Boylan concludes by imploring the Beijing organizers to "make peace with a world in which things are not always quantifiable and clear." As I imagine the unspeakable pain and degradation that a gender witch hunt would cause to sport, to women, and to the Olympic games, I hope they take her advice.

Cross posted at Feminist Law Professors.

California Christians' Referendum Effort Falls Short

As we've noted, several conservative Christian organizations are challenging new amendments to California's anti-discrimination law that clarify its coverage of GLBT students. But their efforts to force a referendum vote on the new law recently feel short, as the organization leading these efforts, Save our Children Kids, secured only 350,000 of the 433,000 necessary signatures. However, the group vows to keep trying to force a public voice to repeal the law and its allies continue to seek an injunction against its enforcement.

Religious Conservatives Continue to Challenge California Antidiscrimination Law

California's newly-enacted Student Civil Rights Act (a/k/a "SB 777") is under attack by conservative, religious organizations, who have not only initiated a referendum that would repeal the law, but are now also challenging the law in court.

SB 777 amended the antidiscrimination provisions of the state education code by adding sexual orientation and gender identity. Many consider this legislation to be a mere clarification, since other, generally applicable antidiscrimination laws already contain those protections. However, as we've noted before, opponents of the new law are arguing that the new law will mean all kinds of changes to the education policies, facilities, and curriculum that will infringe the rights of Christian kids to endure a publicly-funded education without coming into contact with the reality that some people are gay and/or don't adhere to rigid gender stereotypes.

In November, the opposition to SB 777 entered the legal arena when Alliance Defense Fund and Advocates for Faith and Freedom filed a lawsuit in federal court, challenging the law as a violation of the due process rights protected in the federal and California constitutions. Specifically, they argue that by abandoning the biological category of sex in favor a social category of gender, the law imposes a vague nondiscrimination mandate, since educators can't be expected to "read the minds of individuals to determine the individual’s self-defined sexual identity so as not to inadvertently discriminate against an individual based upon their self-defined sex."

Two gay rights groups, Equality California and the Gay-Straight Alliance Network, recently filed motions to intervene in the lawsuit (which would allow them to make arguments in support of the law, even though they are not the named defendant). The groups are represented by NCLR, Lambda Legal, the Transgender Law Center, and two private firms. According to Equality California's executive director Geoff Kors, the intervenors' position is that the law is not vague, it simply clarifies what the courts have already determined: that schools can be liable for discriminating against students, including gay, lesbian, and gender-nonconforming students. I expect they will also point out, in response to the gender = vague = chaos line of reasoning that plenty of states have similarly constructed antidiscrimination law, and that federal courts are increasingly interpreting sex discrimination to include gender and in some cases, sexual orientation, and schools have not experienced the parade of horribles that ADF and AFF apparently fear.

Locker Room Policy Discriminates Against Transgender Student

This story from Massachusetts shows why antidiscrimination statutes that govern educational institutions should be expanded or interpreted to include protection for transgender students.

Ethan Santiago is a 20 year old student at Northern Essex Community College in Haverhill, Massachusetts. He is a female-to-male transsexual who consistently presents as a man and is taking testosterone. Yet the College has refused to assign him a locker in the men's locker room because he has not had sex reassignment surgery. School officials were concerned that, unless his anatomy is consistent with his gender, he would not be safe in the men's locker room.

While I don't doubt that the College is trying to do the right thing, I don't think they realize the bind they've put Santiago in. Unless he has sex reassignment surgery -- an option that is expensive, time consuming, and for some transsexuals, inconsistent with how they view themselves -- his only choices are to either use the women's locker room or forgo whatever educational activity students need locker rooms for. The latter option alienates Santiago from an activity that his tuition dollars entitle him to participate in like every other student. And the former is unacceptable as well. The women's locker room is hardly the bastion of tolerance and goodwill for gender nonconforming individuals that the College is perhaps imagining. Santiago is likely to experience demoralizing harassment and probably have to explain himself to campus security on a regular basis. Even if the women's locker room patrons are unusually understanding, simply having to use a facility that is inconsistent with the gender you experience yourself as and present to the world has got to take a psychic toll.

As we've noted in the past, there are no judicial interpretations of Title IX that address whether transgender students have a right to access locker rooms or other single-sex facilities that are consistent with their presented gender, or even a right to access an equivalent gender-neutral facility, though such cases come up in the employment context with increasing frequency. Perhaps this is because a judicial result is likely to take longer than a students' four years of higher education, or because courts aren't always willing to interpret prohibitions on sex discrimination to include transgender plaintiffs. It also may be because universities are tending to accommodate transgender students, as we see by the increasing number of nondiscrimination policies that protect students regardless of their gender identity or expression.

But as this case and others make clear (consider this story of a Southern Utah University student who's been rejected from the men's dorm because he hasn't had SRS) there are still instances of colleges and universities failing to accommodate transgender students. This shows that there's still need for comprehensive nondiscrimination policies at the state, local, and university/college level. Both Massachusetts and Utah, it should be noted, have such legislation pending.

Prom Dress Discrimination Draws First Amendment, Title IX Claims

In a recently filed lawsuit against the Gary, Indiana school district, Kevin "K.K." Logan, a high school senior, alleges that his constitutional and statutory rights were violated when his principal refused to let him enter his senior prom because he was wearing a dress.

According to the complaint filed in the Northern District of Indiana by Logan's attorneys at Lambda Legal, Logan is transgender, outwardly manifesting a feminine gender that is consistent with his identity. (The complaint refers to Logan using male pronouns, which is why I do so here.) Fortunately, Logan's teachers and peers have been accepting and supportive of his gender expression. However, on the night of his senior prom, principal Diana Rouse physically barred him from entering the banquet center where the prom was being held. Logan had reviewed high school policies in advance to ensure that there was no policy prohibiting him from wearing a dress. He had also received encouragement from the assistant principal to wear what he felt comfortable in.

Logan's complaint alleges that the principal's conduct violated his freedom of expression protected by the First Amendment. It also relies on the First Amendment to challenge the school board policy the principal was ostensibly enforcing, which prohibits students from wearing "clothing or accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements." Students clearly receive less protection for expressive speech and conduct than adults, as the Supreme Court's recent "Bong Hits 4 Jesus" case makes clear, however, schools cannot curtail students' expression arbitrarily; they may do so only to protect the rights and safety of other students or to prevent substantial disruption of educational activities. Given the support that Logan received from his teachers, peers, and administrators other than Rouse, the potential for disruption was arguably absent here.

Logan also asserts that the principal's conduct violates Title IX's prohibition on sex discrimination, which includes discrimination on the basis of sex stereotypes and gender expression. Recently, federal courts have tended to generously construe Title IX in favor of sex stereotyping claims, including most recently in the nearby Southern District of Indiana. Thus, I think Logan's Title IX claim is strong. In light of this, I wonder if the school district will defend the litigation -- which I can't imagine is very popular choice, given the community support for Logan -- or whether it will try to settle.

More University Antidiscrimination Policies Protect Transgender Students

The Gender Public Advocacy Coalition keeps track of colleges and universities' efforts to protect transgender and gender-nonconforming students from discrimination. Their second annual GENIUS Index (Gender Equality National Index for Universities & Schools) finds that 147 colleges (slightly more than half of those surveyed) have a nondiscrimination policy that includes gender identity and expression as a protected category. This trend is even more apparent among the so-called "top" universities, where 2/3 -- including all 8 Ivy League schools -- report antidiscrimination policies that include such protections.

Policies that protect "gender identity and expression" potentially provide greater protection to transgender and gender nonconforming students than sex discrimination statutes such as Title IX, which are subject to arguments that they only cover discrimination based on one's biological sex. Such protection is important, say GenderPAC and others, due to the high numbers of students reporting harassment and discrimination due to perceived gender nonconformity.

N.B. This blogger's institution, Western New England College (a "top" college in my book!) added gender identity and expression to its nondiscrimination policy last year.

Sept 20 update: Stanford, noticeably absent from the GENIUS Index, has since revised its nondiscrimination policy to include gender identity.