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Legal Protections for Transgender and other Gender Non-Conforming Youth

(Excerpted from Beyond the Binary, a Tool-Kit for Gender Identity Activism in Schools)

California law

California law explicitly provides that public schools and non-religious private schools that receive state funding, have a legal duty to protect students from discrimination and harassment on the basis of actual and perceived gender identity. California Education Code §§ 200-220.

The Department of Education regulations implementing this law state that:

[N]o person…shall be subjected to discrimination, or any form of illegal bias, including harassment. No person shall be excluded from participation in or denied the benefits of any [school] program or activity on the basis of . . . gender . . . Title 5, California Code of Regulations, § 4900(a).

The law defines “gender” very broadly:

“Gender” means sex, and includes a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. Penal Code § 422.56 (effective Jan. 1, 2005, as amended by S.B. 1234 (2004)). [1]

Federal law

In addition to this state law, discrimination or harassment directed at transgender or gender-nonconforming students may violate the Equal Protection Clause of the Constitution, Title IX of the federal Education Amendment Acts of 1972, or other constitutional provisions.

(1) Equal Protection Clause

All students have a federal constitutional right to equal protection under the law. This means that schools have a duty to protect transgender students from harassment on an equal basis with all other students. If school officials failed to respond to harassment directed at a transgender student because they believe the student should expect to be harassed, or because they believe the student brought the harassment upon themselves simply by being openly transgender, or because the school was uneducated about transgender issues and was uncomfortable addressing the situation, then the school may have violated the Equal Protection Clause. Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003) (holding that school officials have an obligation under the Equal Protection Clause to respond to harassment and discrimination based on sexual orientation);[2] Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) (holding that school¹s failure to protect a gay student from harassment violated the equal protection clause).[3] Although Flores and Nabozny involved lesbian and gay students, the same rationale would likely be applied if a school failed to protect a transgender student from harassment or discrimination.

A transgender student also has a right under the Equal Protection Clause to be treated similarly to other students of the same gender identity. So, if the school treats the student differently than it would treat other students of the same gender identity (i.e. if it imposes a dress code on a male-to-female transsexual that is different than the dress code that is applied to biological females), then the school is applying rules in a sex discriminatory way (i.e. it is applying the code differently based on the student¹s biological sex). See Doe v. Yunits, 2000 WL 33162199 (Mass. Super. 2000).

(2) Title IX

Title IX of the Education Amendment Acts of 1972 prohibits discrimination based on sex in education programs and activities receiving federal financial assistance. One of the forms of prohibited conduct under Title IX is discrimination on the basis of gender non-conformity. So, for example, if a boy is called girls names because he is perceived to be effeminate, failure to take steps to stop that harassment may violate Title IX. See, e.g., Montgomery v. Independent Sch. Dist. No. 709, 2000 WL 1233063 (D. Minn. 2000); Miles v. New York University, 979 F. Supp. 248 (S.D.N.Y. 1997).[4]

(3) Other Constitutional Provisions

A transgender student¹s right to dress in accordance with his or her gender identity is also protected under both the First Amendment and the Due Process Clause of the U.S. Constitution. The First Amendment prohibits government officials (including public school teachers and administrators) from censoring a student¹s speech or expression without a compelling reason. Similarly, students have a protected liberty interest (under the Due Process Clause) in their personal appearance. See Doe v. Yunits, 2000 WL 33162199 (Mass. Super. 2000).

[1] See also Title 5, California Code of Regulations, § 4910(k) (“‘Gender’ means a person’s actual sex or perceived sex, and includes a person’s perceived identity, appearance, or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with a person’s sex at birth.”).

[2] This case recently settled for over $1.1 million, as well as significant policy changes and training requirements for school officials and students.

[3] On the eve of trial, the school district agreed to pay Jamie Nabozny almost $1 million in damages.

[4] See U.S. Dept. of Educ., Office of Civil Rights, Revised Title IX Guidance, § III (“gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond . . .”).