Danielle Weatherby∞

Abstract

In recent years, transgender adults in the entertainment world have capitalized on their public platform to advocate for and increase awareness about issues affecting the transgender community. Yet even with the emerging cultural understanding of this community, there is a noticeable absence of a voice for transgender youth, a particularly vulnerable segment of this misunderstood population. Children—often as young as four or five—are more commonly proclaiming to be “born in the wrong body.” In addition to being subject to intolerable bullying and harassment by their peers, transgender youth face an uphill battle in public schools because educators are unprepared to handle the logistics of their transition process, which includes a prolonged period of living in all aspects as the opposite sex.

First, this article acknowledges the quagmire plaguing public schools that serve a transgender population. When and to what extent should schools intervene when children in their care are confronted with gender identity issues? What responsibilities do schools have to protect and educate both those children facing gender identity issues and those children who are impacted by their peers’ non-conforming gender expression? Finally, and most significantly, how should schools address the daily logistics affecting transgender students, including bathroom and locker room designation, which have historically been determined by a student’s biological sex?

Second, this article analyzes the current legal landscape governing issues affecting transgender youth in public K-12 schools. Although there is a burgeoning recognition in the law of rights for sexual choices and identities that are non-traditional, the current law is insufficient in dealing with the practical and logistical concerns that schools serving transgender students face on a daily basis.

Next, the article advances a novel argument that demands more robust protections for a transgender student’s gender expression. It submits that a transgender student’s expressive conduct (including her desire to use the restroom that corresponds with her gender identity) is speech that falls within the protective umbrella of the First Amendment. Since a transgender student’s outward expression of gender conveys an important message to others about that student’s identity, and because fitting in and being accepted are so vital to a transgender youth’s psychological well-being, a transgender student’s expressive conduct is undoubtedly “speech” as defined by long-standing First Amendment jurisprudence.

Lastly, the article cautions that schools must not yield to the impermissible “heckler’s veto” by silencing a transgender student’s peaceful speech simply because that speech is unpopular. Instead, by modeling inclusiveness and awareness for students’ differences, school officials are in a unique position to affect a significant change in the negative attitudes held toward transgender youth.

 

Introduction ……………………………………………………………………………… 90

I. From Jack to Jill – A Transformative Story of a Transgender Student’s Plight 94

A. Infancy and Early Childhood…………………………………………………….. 94

B. Adolescence……………………………………………………………………………. 95

C. A Culture of Violence Targeted at Transgender Youth…………………… 98

II. Semantics Matter: Governing Labels and Classifications…….. 100

III. Legal Protections for Transgender Individuals………………… 103

A. Title VII and Federal Case Law………………………………………………… 104

B. The ADA and the Rehabilitation Act – A Step Backward……………… 108

C. Recent Legal Developments…………………………………………………….. 111

IV. School-Specific Protections Including Anti-Bullying Laws… 112

V. Resolving The Transgender Divide – Gender Expression as Protected Speech 119

A. Bathroom Choice as Symbolic Conduct Communicating a Particularized Message About Gender Identity 121

B. Scrutinizing School Suppression of Gender-Expressive Speech……….. 123

Conclusion and Recommendations…………………………………………… 128

 

Introduction

Our love of lockstep is our greatest curse, the source of all that bedevils us. It is the source of homophobia, xenophobia, racism, sexism, terrorism, bigotry of every variety and hue, because it tells us there is one right way to do things, to look, to behave, to feel, when the only right way is to feel your heart hammering inside you and to listen to what its timpani is saying.0

The 1999 hit science fiction movie The Matrix follows the double life of a gifted and inquisitive computer hacker named Neo as he explores the blurred lines between a computer-simulated fictitious world and a harsh, futuristic reality.1 The Matrix won four Academy Awards, as well as several other accolades, including a Best Director Saturn Award for its famous writer and director, Lana Wachowski.2

In 2012, Lana spoke publicly about her own dual reality, when she confessed to the world her lifelong struggle with gender identity and her attempt at suicide as a teenager.3 As a forty-seven-year-old transgender4 woman, who had lived as a man named Larry until 2002, Lana recounted a life of inner turmoil, feeling as if she was stuck in a proverbial no-woman’s land between socially accepted gender classifications—possessing a “powerful gravity of association” towards the female sex, yet feeling as if she “[did not] belong” in her body as a biological man with traditional male anatomy.5

Lana’s account of her life stuck between two genders parallels the duality of The Matrix. Just as Neo was presented with the life-altering choice of whether to swallow the blue pill, which offered the security and comfort of the status quo, or the red pill, which, although unknown, offered the potential for truth and clarity, so too Lana faced her own choice: to continue to live in the ill-fitting, yet socially-accepted, gender classification with which she was born, or to bravely break through societal norms to claim her own truth. Afflicted with a crisis of self-identity since she was a child, Lana embraced her inner voice and chose to live as a woman.6

In recent years, transgender children as young as five and six years old have grabbed the attention of the media.7 Josie Romero was only six years old when she proclaimed herself to have been born in the wrong body.8 At her young age, Josie, who was assigned the male sex designation on her birth certificate, changed her name from “Joe” to “Josie,” and lived as a girl from that point forward.9

Many children like Josie, who have gender dysphoria,10 experience deep conflict over their gender assignments.11 Despite the societal expectations resulting from their physiological and anatomical presentation, young children are bravely claiming their own gender identity and pushing social norms to their limits.

These narratives raise important and timely questions. Many of these questions are currently unanswerable. For example, how young is too young for a child to begin questioning his or her assigned sex?12 At what age are children able to comprehend and accept differences in the gender identities and gender expression of their peers?

Still, many other critical questions, especially within the public school context, can and must be answered. When and to what extent should schools, standing in loco parentis,13 intervene when children in their care are confronted with these issues? What responsibilities do schools have to protect and educate both those children facing gender identity issues and those children who are impacted by their peers’ non-conforming gender expression? Finally, and most significantly, how should schools address the daily logistics affecting transgender students, including bathroom and locker room designation, sex designation on student records, and eligibility for interscholastic sports, all of which are currently determined exclusively by a student’s biological sex?

Having come to the consciousness of society and the legal system, these logistical issues warrant judicial intervention, but high courts have declined to confront the difficult questions.14 Consequently, schools struggling to balance the rights of individual students against the impact of a transitioning student’s gender expression are left tackling the tough questions blindly.

In response to this predicament facing K-12 schools across the United States, this article advances a novel legal argument that demands more robust protections for a transgender student’s gender expression. Because a transgender student’s outward expression of gender (including her desire to use the restroom that corresponds with her gender identity) conveys an important message to others about that student’s identity, her expressive conduct should be treated as speech that falls within the protective umbrella of the First Amendment. Accordingly, school officials must not improperly silence a transgender student’s expressive conduct simply because the message conveyed (i.e., “I identify as a girl, even though I was born with male genitalia.”) makes them uncomfortable.

This article proceeds in five parts. Part I will present a fictional paradigm, reflecting the struggles and fears of a modern transgender youth. In doing so, Part I will also consider the practical and logistical concerns that schools face on a daily basis with respect to the treatment of transgender students. Part II of this article will contemplate the linguistic background within which these issues arise and are discussed. Stigmatization can be conveyed through language.15 Therefore, as schools, courts, and legislatures begin to adopt rules for addressing the concerns of transgender students, value-neutral terminology must be adopted. Part III will present an overview of the current federal legal landscape. Part IV will summarize the relevant legal response to the increasing threat of violence and harassment targeted at transgender youth at the state level. Invoking the First Amendment, Part V will propose an alternative argument that should be advanced to buttress a public school’s responsibility to respect and protect a transgender student’s gender expression. In conclusion, this article will offer a roadmap for resolving the issues facing transgender youth in the modern schoolhouse.

I. From Jack to Jill – A Transformative Story of a Transgender Student’s Plight

To illustrate the struggles and challenges facing both transgender children and public school administrators, I have created the fictional character “Jill.” Jill’s story is loosely based on the struggles and fears of real-life transgender students.

A.  Infancy and Early Childhood

Let’s imagine that “Jack,” the first-born son of Linda and John Miller, was born in the summer of 1998 in the State of “Harmony.” Based on his physical appearance and the normal development of traditional male sex organs, Jack was assigned the male sex designation on his official birth certificate and named “John Patrick Miller, Jr.” by his parents. At the age of three, Jack began to proclaim his femininity, demonstrating strong preferences for traditional female-oriented toys and clothes. On Jack’s fourth birthday, he asked for a pink tutu. After blowing out his birthday candles, Jack told his parents that his birthday wish was to be made into a girl, just like his younger sister. A year later, Jack demanded to be called “Jill” and would only answer to the corresponding female pronouns. Linda and John obliged and, from that point forward, referred to their first-born son as Jill, just as she wished.

When Jill turned seven, the Miller family consulted a psychiatrist. The psychiatrist diagnosed Jill with gender dysphoria16 and recommended that she attend both individual and family therapy on a weekly basis. Throughout the next four years, Jill’s therapist came to know Jill and the Miller family well. He was struck by Jill’s unwavering insistence that she was a girl and that her penis “did not fit” on her body.

 B. Adolescence

When Jill turned eleven and puberty set in, she became clinically depressed and suicidal. One Sunday afternoon, the Millers found Jill in the bathroom bleeding from her left wrist, with a kitchen knife, still wet with blood, in her right hand.17 Out of concern for her safety, Jill’s psychiatrist prescribed a strong anti-depressant, and Jill quickly stabilized.

At this point, as directed by her therapist, Jill began to live in all aspects as a girl.18 She dressed as a girl, wore her hair long, and began hormone injection therapy. Jill began to feel an overwhelming sense of relief that she could outwardly express her true self to others.

While she had a few close friends, Jill struggled to maintain a social network. At times, she felt alone and misunderstood.

The Millers retained an attorney from the American Civil Liberties Union (“ACLU”) to represent them in their discussions with the Harmony City School District, where Jill attended school. In the fall of 2012, the Millers and their attorney met with the principal at the Harmony City High School to discuss Jill’s transition. The Millers made multiple demands of the District in order to ease Jill’s transition.

Having never served a self-identified transgender student, the District had not confronted the issues raised by the Millers before. The District had no policy dictating its treatment of transgender and gender non-conforming students and no precedent for how to handle the Millers’ requests. The District’s attorney sought guidance from the State Education Department (“SED”), but SED was no help, refusing to issue policy because of the controversy surrounding the issues. Thus began the legal and practical conundrum in the Harmony City School District.

First, the Millers requested that the District maintain the confidentiality of Jill’s transgender status. Pursuant to the Family Educational Rights to Privacy Act (“FERPA”), in schools receiving federal funding, parents and students have the right to have personally identifiable information in their education records, except “directory information,” kept confidential.19 On a state-by-state basis, there may be more emphatic privacy laws that protect against the disclosure of personal information, including medical and mental health information.20 Notwithstanding the lofty privacy goals inherent in these laws, in reality, certain school officials must be advised of a transgender student’s status for the student’s own protection.21

With these dueling goals, the question became how the school district could maintain Jill’s privacy while simultaneously ensuring student safety and implementing school policy. With no guidance available, the Millers worked with the District to create a list of acceptable District staff members and teachers who would be informed of Jill’s status. The Millers also agreed to the disclosure of Jill’s transgender status to the extent such disclosure was necessary to protect Jill from imminent danger.

The Millers also insisted that school officials refrain from using the name “Jack” and refer to Jill by the appropriate female pronouns. Because it was not uncommon for Harmony students to request to be called a name other than the one that appeared on their official school records, the District treated the Millers’ request as any other nickname request. As such, the District agreed to advise those personnel on the parties’ “approved list” to adopt the name Jill as well as corresponding feminine pronouns. The District beseeched the Millers to be tolerant of inadvertent slips or honest mistakes while teachers and staff adjusted to the change. Both parties were cooperative and quickly complied with their responsibilities.

Next, the Millers demanded that the school retroactively amend Jill’s school records to reflect her female gender. Under FERPA, parents may request an amendment of any school records that they consider “inaccurate, misleading, or otherwise in violation of the privacy rights of students.”22 The decision to amend ultimately rests with the school, and parents opposing the school’s decision can request a hearing.23 The District ultimately refused to change the sex designation on Jill’s official records, fearing that such amendment would preempt the District’s objection with respect to any subsequent sex or gender challenge.

While all of these practical and logistical considerations are important and necessitate immediate resolution, this article will focus on Jill’s final and most sensitive request, that the District permit her to use the girls’ restroom. The “great bathroom debate,”24 one of the most divisive and controversial issues typically raised by transgender students,25 quickly created a rift between the Millers and the District.

The District’s student handbook dictated that students use the restroom that corresponds with the sex indicated on official school records (which matched the sex identified on the student’s birth certificate). Reluctantly, as a compromise, the District offered Jill access to the single-stall, unisex bathrooms in the large and sprawling high school building. The Millers felt that it was impractical and physically impossible to restrict Jill’s use to the single-stall unisex bathrooms in the building, since there were only two, and neither was located near her classrooms. Instead, the Millers insisted that Jill be permitted to use the girls’ restroom since she was, in all other aspects, living as any other high school girl. When it became evident that the parties would not amicably resolve the issue, the Millers filed a lawsuit in the Harmony State District Court, claiming that the District’s refusal to allow Jill access to the girls’ restroom violated the Harmony State Human Rights Law.26

 C. A Culture of Violence Targeted at Transgender Youth

On February 12, 2008, a cross-dressing, fifteen-year-old boy named Lawrence King was sitting peacefully in his school’s computer lab when his fourteen-year-old classmate Brandon McInerney approached him and delivered two fatal shots into the back of his head.27 During McInerney’s criminal trial, at which he was tried as an adult, the defense lawyer advanced what has been called the “‘gay panic defense,’ where the defense argues that a gay person’s sexual advances are so frightening that they lead the perpetrator to commit violence.”28 This strategy blames the victim and minimizes the bias-based motive driving most hate crime convictions.29 McInerney ultimately pled guilty to second-degree murder and received a sentence of twenty-one years in prison.30

Threats of violence and harassment are highly prevalent realities for transgender youth in schools today.31 In 2011, 705 transgender sixth- to twelfth-graders responded to the Gay, Lesbian & Straight Education Network (GLSEN) National School Climate Survey, one of the few annual studies of the experiences of LGBT students in America.32 Eighty percent of transgender students reported feeling unsafe at school because of their gender expression33 and sixty-four percent of LGBT students reported being verbally harassed in the past year because of their gender expression.34 Of the 8,584 students surveyed, 56.9% of students heard teachers or other staff making negative comments about a student’s gender expression at school,35 and 20.1% of students reported being physically assaulted at school because of their gender or gender expression.36 More than half of the students surveyed reported being a victim of cyberbullying in the past year.37 Finally, of the students that did not report harassment or assault in the past year, 37.9% of them did not report the harassment because they doubted school staff intervention would be effective or worthwhile.38

Peer violence targeted at transgender youth is a real threat in schools today.39 This is because a child’s impressions begin to form in early development, as children take cues from parents and other adult authority figures in developing social attitudes.40 Schools seeking to combat this problem should model tolerance for transgender students.41 When stereotypes and prejudices are deeply embedded in social norms, stereotypes are passed from parent or teacher to child. This cycle of learned bigotry reinforces and perpetuates the deep-seated prejudices transgender youth face in schools.

Transgender youth are misunderstood simply because of who they are and how they outwardly express their gender identity. Since a transgender student’s outward expression of her gender identity is expressive conduct—an extension of her self that deserves First Amendment protection—the time is ripe for government action to provide the imprimatur of law to protect this vulnerable group.

II. Semantics Matter: Governing Labels and Classifications

As illustrated by Jill’s story, the Harmony City School District, like most public school districts, was reluctant to modify its labeling of Jill as male. Nonetheless, all of the District’s decisions, which impacted Jill as a transgender student, flowed from the District’s use of language in classifying her as either male or female. Undoubtedly, a student’s classification in one of two historically recognized sex categories is a controlling factor upon which schools rely in making decisions about gender-specific behavior.

In a legal system where gender classifications have historically been binary,42 one of the most significant challenges in carving out rights for transgender individuals is how they are defined by governing law.43 As such, sex and gender terminology is critical in determining the remedies and protections available for transgender youth.44

Society, and ultimately the law, must recognize that the terms “sex” and “gender” are not always interchangeable.45 Sex traditionally refers to an individual’s “assigned” or “biological sex,” “[t]he physiological and anatomical characteristics of maleness and femaleness with which a person is born or that develop with maturity.”46 Infants are usually assigned to a sex category at birth on the basis of physical characteristics, primarily the appearance of the external genitals, and that sex designation appears on birth certificates and other legal documents.47 An individual’s biological sex and assigned sex almost always correspond; there are, however, instances in which a newborn appears to possess either both male and female genitalia or sexual anatomy that does not seem to fit within the traditional definitions of female or male.48 In Jill’s case, her biological sex (and thus her assigned sex) is male.

“Gender,” on the other hand, is a socially prescribed term that parallels the concepts of masculinity or femininity society expects to accompany one’s biological or assigned sex.49 The term “gender identity” refers to that gender classification with which an individual identifies—an individual’s own sense of being male or female or something in between “whether or not that gender-related identity . . . is different from that traditionally associated with the person’s physiology or assigned sex at birth.”50 For example, despite the fact that her assigned sex is male, Jill’s gender identity is female.

“Gender expression” refers to an individual’s “external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions.”51 The term “gender” can also encompass several different meanings within the context of a particular law. For example, under the New York City Human Rights Law, “gender” is an inclusive term that encompasses a person’s “actual or perceived sex and . . . gender identity, self-image, appearance, behavior or expression.”52 Because Jill was known as Jack and presented as a boy until she began her transition, Jill’s gender was most likely perceived by her peers as male. Her gender expression, however, does not conform to society’s traditional notions of male behavior.

As illustrated by Jill’s gender dichotomy, “gender non-conforming” typically refers to a non-traditional mapping of gender expression and biological or assigned sex.53 In other words, a gender non-conforming individual is an individual whose gender identity differs from his or her biological or legal sex, or who expresses gender in a way that does not conform to stereotypical binary expectations. Jill may be perceived as gender non-conforming because she is biologically a boy who wears dresses, enjoys applying her mother’s makeup, and expresses more traditional female behavior. Finally, the term “transgender” is an umbrella term encompassing the state of one’s gender identity or expression being inconsistent with that individual’s assigned sex at birth.54 For example, a male-bodied person, like Jill, who identifies consistently and persistently over time as a girl is a transgender girl.

Historically, certain rights and privileges (i.e., bathroom use) have been based on a binary construction of sex, as opposed to gender. Currently, the law reflects a strictly male or strictly female viewpoint of individual rights.55 But assigning rights based solely on an individual’s assignment in one of two sex categories is misguided since gender, the more accurate indicator of individuality and self-identity, can in fact span a spectrum.56 In recognition of this fact, the use of gender-neutral pronouns like “ze” and “hir” is becoming increasingly popular.57 Implicit in such linguistic changes is the recognition that, as discussed in Part VI below, an individual’s gender identity, and his or her resulting gender expression, is inherently a speech act, entitled to full First Amendment protection. Because conduct expressing one’s gender identity is worthy of First Amendment protection, the first overarching principle that should guide policymaking for the transgender community is that “[e]veryone has a gender identity.”58

III. Legal Protections for Transgender Individuals

“There is a nascent jurisprudence of transsexualism” in American law.59 For decades, courts and tribunals have failed to decide these difficult, and often divisive, issues.60 As Jill’s story illustrates, schools are blindly navigating an unplowed terrain. Now, however, with transgender issues at the forefront of popular culture,61 and violence targeted at transgender individuals at a higher rate than the rest of the LGBTQ community,62 courts and lawmakers should respond through legal reform.

 A. Title VII and Federal Case Law

There is currently no federal statute that expressly prohibits discrimination in employment or places of public accommodation on the basis of gender identity. Although bills aiming to establish explicit protections on the basis of sexual orientation and gender identity have been introduced in Congress nearly every year since 1994, no bill has yet passed both Houses.63 Nonetheless, transgender individuals seeking redress for claims of discrimination in the workplace have found protection in Title VII of the Civil Rights Act of 1964 (“Title VII”).

Indeed, Title VII—the oldest and most comprehensive anti-discrimination statute prohibiting discrimination by private parties—is the first federal law that has been interpreted by the judiciary to recognize rights and protections for transgender individuals.64 Federal courts, from the 1970s through the 1990s, generally denied sex-discrimination claims brought by transgender people.65 In recent years this trend has changed; the First, Sixth, and Ninth Circuit Courts of Appeals,66 as well as a number of federal district courts, have held that federal sex-discrimination laws such as Title VII offer limited protection to transgender or gender non-conforming individuals.67 These transformative circuit cases follow the Supreme Court’s landmark ruling in Price Waterhouse v. Hopkins,68 which permitted a sex discrimination claim under Title VII to proceed on the grounds that a plaintiff’s firm denied her partnership because of her failure to conform to traditional sex stereotypes.69

Hopkins, the plaintiff in Price Waterhouse, was a female senior manager at Price Waterhouse who was passed over for partnership at the prominent accounting firm.70 The putative reason was her “aggressiveness” and lack of interpersonal skills, but the Supreme Court detected sexism in the comments of her evaluators.71 For example, partners described her as “macho” and stated that she “overcompensated for being a woman.”72 One partner even advised Hopkins that she could improve her chances of making partner if she would only “walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry.”73

The Court held that Title VII reaches claims of discrimination based on “sex stereotyping.”74 The Court emphasized that:

[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group for [i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to             strike at the entire spectrum of disparate treatment of men            and women resulting from sex stereotypes.75

This case carved out a new right under Title VII to be free from discrimination based on sex stereotyping. Sex stereotyping encompasses an employer’s discriminatory treatment of an employee based on that employee’s failure to conform to traditional gender roles and expectations.76 Critically, Title VII and Price Waterhouse do not distinguish between transgender and non-transgender plaintiffs who fail to conform to traditional gender stereotypes.77 In this fashion, Price Waterhouse opened the door to broader legal protections for transgender litigants.78

The Title VII gender line became even more blurred after transgender woman Diane Schroer interviewed while presenting as a man and was made an offer of employment as a terrorism research analyst with the Library of Congress.79 After informing the organization that she was in the process of transitioning from male to female and would be working as a woman, the Library rescinded Schroer’s employment offer.80 Schroer sued the Library of Congress for sex discrimination in violation of Title VII.

The District Court concluded that Schroer’s “allegations of sex stereotyping d[id] not state a claim under Title VII.”81 Nonetheless, the court denied the Library of Congress’s motion to dismiss “because discrimination against a transsexual may nevertheless violate Title VII’s proscription of discrimination ‘because of . . . sex.’”82 The court noted that this holding was designed to “preserve[] the outcomes of the post-Price Waterhouse case law without colliding with the sexual orientation and grooming code lines of cases.”83

Following Price Waterhouse, courts began to recognize Title VII discrimination claims “based on failure to conform to gender stereotypes.”84 The Sixth Circuit has clarified that, while earlier jurisprudence denied transgender individuals Title VII protection because they were considered victims of “gender” rather than “sex” discrimination, Price Waterhouse “established that Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”85

 B. The ADA and the Rehabilitation Act – A Step Backward

In 2008, federal anti-discrimination laws took a huge step backward when Congress passed large-scale amendments to the Americans with Disabilities Act (“ADA”).86 Despite the wide-sweeping nature of the amendments, Congress preserved the exclusion from the ADA’s coverage of individuals suffering from “gender identity disorders.”87 The 2008 amendments expanded the definition of the term disability in several important ways.88 First, the rules of construction expressly state that the term disability “shall be construed in favor of broad coverage of individuals.”89 Second, the amendments eased the definition of disability with the addition of a “regarded as” prong. Now, the Act requires only that an individual demonstrate that she was subject to a prohibited act because of an actual or perceived impairment, which removes the more onerous burden of proving that the perceived impairment limits or substantially limits a major life activity.90 The amendments also broadened the definition of what constitutes a “major life activity” to include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, [and] bladder.”91 Finally, the 2008 amendments specified that the term “disability” includes “[a]n impairment that is episodic or in remission if it would substantially limit a major life activity when active,” and prohibited consideration of “ameliorative effects of mitigating measures” when assessing “whether an impairment substantially limits a major life activity.”92

Despite the fact that gender identity disorder is a condition that has long been recognized, diagnosed, and treated by the American Psychiatric Association,93 the country’s most comprehensive disability discrimination statutes expressly exclude “transsexualism” and “gender identity disorders not resulting from physical impairments” from the list of protected disabilities.94 Although the symptoms of gender dysphoria often become so severe that people can experience “clinically significant distress or impairment in social, occupational, and other important areas of functioning,”95 federal laws prohibiting discrimination based on disability exclude conditions related to gender identity from their purview.96

This legal lacuna creates an interesting contradiction. Consider momentarily that Jill would not be defined as a “person with a disability” under the ADA based solely on her gender dysphoria,97 even if the stress and anxiety resulting from her disorder caused her to become depressed. As long as the depression did not actually or impliedly inhibit a major life activity, as defined by the ADA, the underlying gender dysphoria would not itself qualify her as a person with a disability protected by the Act. Then assume, for the sake of argument, that Jill felt so uncomfortable using the boys’ bathroom, which the Harmony City School District designated for her use on the basis of her biological sex, that she ignored the urge to urinate and waited until the end of the school day to empty her bladder. Because she resisted the urge to urinate, Jill developed a painful bladder infection, for which she was hospitalized and treated by a urologist. If the severity of the bladder infection resulted in Jill developing a dangerous urological condition, and the condition interfered with a major life function, Jill would qualify as a person with a “disability” under the ADA.

The development of Jill’s urological condition undoubtedly resulted from her underlying gender dysphoria, yet only after receiving a secondary medical diagnosis for her urological complications would Jill qualify as a person with a disability under the ADA. This deliberate exclusion unfairly disadvantages individuals suffering from the often-serious complications resulting from gender dysphoria. A simple amendment repealing the explicit exclusion of gender dysphoria from the definition of “disability” would resolve this unjust legal loophole.98

Admittedly, transgender individuals and advocates may take issue with the labeling of gender dysphoria as a “disability” under federal law. The labeling of individuals with gender dysphoria as “disabled” may indeed have additional implications and consequences besides potential relief for trans-plaintiffs, including the perpetuation of continued social stigmas targeted at transgender individuals. “When we call someone disabled, we make a statement, not just about that person’s ‘well-ness,’ but about his or her well-being, indicating something about our belief in his or her ability to fulfill a measure of human potential or to achieve a certain degree of self-respect.”99 Despite these concerns, the ADA can provide relief for a variety of conditions, including severe and unusual complications resulting from pregnancy.100 Just as not every pregnant woman suffers from severe and unusual complications during her pregnancy, not every transgender individual suffers from gender dysphoria. Gender dysphoria, instead, is simply the diagnosis that attaches to individuals manifesting the “clinically significant distress” associated with the conflict over their gender identity.101 The ADA is one way to achieve a quick legal fix so that transgender individuals with a genuine need for an accommodation can find solace in the law.

Once Jill qualifies as a person with a disability under the ADA, must Harmony City School District provide her access to the girls’ restroom? Alternatively, could the school satisfy its reasonable accommodation burden under the ADA by providing Jill access to a gender-neutral bathroom, perhaps a single-stall staff restroom or the restroom in the nurses’ room? With little judicial precedent and scant agency guidance, schools all over the country are tackling these issues unarmed, and their ad hoc policy-making puts them in unnecessary danger for liability.102

 C. Recent Legal Developments

In 2012, the Equal Employment Opportunity Commission (“EEOC”) strengthened the groundwork laid by Price Waterhouse in its groundbreaking decision in Macy v. Holder.103 In Macy, the EEOC removed the distinction between “sex” discrimination and “sex stereotyping” discrimination,104 holding that discrimination against an employee or potential employee based on the employee’s transgender status (also known as gender identity discrimination) is discrimination “because of sex” and is prohibited by Title VII.105 This ruling opens the door for transgender plaintiffs to bring lawsuits against employers that have discriminatorily fired or failed to hire them based on their gender identity. It also lays the groundwork for the theory that transgender discrimination is sex discrimination because gender identity is an integral part of one’s sex.

On July 21, 2014, President Barack Obama signed an amendment to Executive Order 11478, furthering protection for employees of federal contractors and federal employees from discrimination on the basis of sexual orientation and gender identity.106 This is the first Executive Order expressly prohibiting sexual orientation and gender identity discrimination by federal employers.107 On August 19, 2014, the Department of Labor Office of Federal Contract Compliance Programs issued Directive 2014-02, which clarified agency guidance prohibiting discrimination on the basis of sex to “include[] discrimination on the bases of gender identity and transgender status.”108

In 2009, President Obama made great strides when he signed into law the historic Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (“HCPA”), enacted as a rider to the National Defense Authorization Act.109 The much-needed and long overdue HCPA prohibits willful violence targeted against another individual on the basis of his or her sexual orientation or gender identity.110 The Act defines gender identity as “actual or perceived gender-related characteristics,” protecting not only those individuals who self-identify as transgender but also those individuals who are perceived as gender non-conforming.111 Since its enactment in 2009, the law has withstood constitutional challenges by defendants indicted under its provisions112 and religious activists113 who disagree with the policy objective of the statute—namely, to help protect individuals from violence based on who they are.114

IV. School-Specific Protections Including Anti-Bullying Laws

While no federal laws directly address bullying in schools, almost all states, as well as the District of Columbia, have some form of anti-bullying law. Currently, Montana is the only state that has no anti-bullying laws or regulations.115 Of the forty-nine states that do have protections, many of them do not enumerate specific personal characteristics that are covered, such as race, sex, or sexual orientation.116 At least fifteen states and the District of Columbia have laws specifically prohibiting gender identity discrimination in public schools.117 Many of these states include protections against cyber or electronic bullying.118 Generally, in these states, school officials may not harass or allow others to harass a student based on the student’s gender identity. In addition, several of these states require that school districts have a policy against harassment and bullying based on a list of characteristics that includes gender identity.119

Increasingly, schools and school districts have also adopted policies protecting transgender students from discrimination, providing that transgender students be allowed to use restrooms and locker rooms and participate in sports in accordance with their gender identity.120 The laws in New York,121 California122 and New Jersey123 offer some of the most robust protections, including mandates that school districts adopt and implement sound policies protecting students from harassment or bullying based on their actual or perceived gender identity.124

While state anti-discrimination and anti-bullying laws serve the important public policy goals of creating a school environment of safety and acceptance and raising awareness for students’ differences, these laws, as they currently exist, are insufficient. Anti-bullying laws govern the boundaries of peer-to-peer interactions. But they lack guidance for schools struggling to figure out how to protect transgender students’ rights more broadly. As a result, there has been an upsurge in the amount of litigation either threatened or filed by transgender students or their parents against schools.125 In the past year, state-level courts and tribunals have considered and decided a small number of these conflicts, and their decisions suggest a growing recognition for transgender students’ equality.126

One significant decision is a June 2013 Colorado Division of Civil Rights determination finding that probable cause existed for Coy Mathis, a six-year-old transgender girl, to sue her school district based on its decision to ban her from the girls’ restroom.127 Coy was born with male anatomy, but she self-identified as a girl from the time she was eighteen months old.128 Coy initially enrolled in the Fountain-Fort School District 8 (the “District”) as a boy and was known by the school community as a boy.129

In November 2011, an incident occurred in Coy’s kindergarten class that prompted a dialogue between the school district and the Mathises.130 When Coy’s teacher asked the children in Coy’s kindergarten class to form two lines, with the girls in one line and the boys in the other, Coy joined the girls’ line.131 Her teacher immediately corrected her and directed her to join the boys’ line.132 Coy complied, but when she came home at the end of the day, she seemed “distraught” and complained to her parents, “[n]ot even my teachers know I’m a girl!”133

Following this incident, in December 2011, the Mathises met with the school district to address the logistics of Coy’s transition.134 Among other things, the parties discussed the use of feminine pronouns, attire, and how to “best address [Coy’s] transition with her classmates.”135 While Coy was still in kindergarten, the topic of restroom use was not an issue because the classroom had one, unisex restroom.136 At the beginning of first grade, Coy began using the girls’ restroom without incident.137 In fact, Coy’s first grade teacher encouraged her students to go to the bathroom in pairs, and Coy always chose a female friend to accompany her.138 Shortly after, however, the District prohibited her from using the girls’ restroom. Instead, they directed her to use either the boys’ restroom or one of the single-stall restrooms available to the school staff or in the health office.139

In its defense, the District argued that its restroom assignment policy was appropriately based on a student’s biological sex (as opposed to a student’s gender or gender identity), and that Coy was biologically a male.140 The Colorado Division of Civil Rights (the “Division”) flatly rejected the District’s justification. Relying on guidance from the Colorado Civil Rights Commission, describing restrooms as “Gender-Segregated Facilities,” the Division held that the sex/gender rationale was unpersuasive since even Colorado law conflated the terms gender and sex.141

The Division also considered documentary evidence introduced by both parties. Although the District’s school record reflected that Coy was male at the time of enrollment, the Division noted that the record produced asked for the student’s gender, not the student’s sex.142 Accordingly, if the District’s argument for banning Coy from the girls’ restroom was based on the fact that her biological sex was male, the school record introduced by the District held little weight. More persuasive were Coy’s Colorado and federal credentials, a state identification card and a U.S. passport, respectively, both indicating Coy’s sex, not gender, as female.143 Finally, the Division considered a Medical Information Authorization (Change of Sex Identification) form completed by a Colorado physician that identified Coy’s gender as female.144

In light of the contradictory documentary evidence, the Division relied heavily on independent scientific research demonstrating that sexual anatomical anomalies occur in one out of one hundred children born,145 and that an individual’s assigned sex is based solely on the external reproductive organs, not the presence of internal female reproductive organs.146 Based on this science, the Division concluded, “sex assignments given at birth do not accurately reflect the sex of a child, indicating that birth certificates may no longer constitute conclusive evidence of a child’s sex.”147

Ultimately, in finding that the Mathises had probable cause to pursue their discrimination claim, the Division referenced the Colorado Civil Rights’ Commission rules interpreting and clarifying the Colorado anti-discrimination laws.148 In considering the District’s concerns about safety for Coy and other transgender students who could be subjected to harassment from other students, the Division cautioned schools charged with protecting their students from such behavior not to “penalize the student who was harassed [by] . . . hinder[ing] students’ access to services or facilities” but rather to “respond to individual incidents of misconduct.”149 The Division even went so far as to remark that the District “would likely not consider having a separate classroom for African American students because it was concerned that they may be subjected to racial harassment, even though that harassment had not yet occurred.”150 Similarly, in response to the District’s concern for the comfort level of non-transgender students and their parents the Division admonished the District, positing that it could not legitimize its position under the law based on hypothetical situations.151 Coy thrived in school once she was fully accepted as a girl.152

In January 2014, the Maine Judicial Supreme Court considered the same question in Doe v. Regional School Unit 26153: whether a school district violated state human rights laws by banning a transgender girl from the girls’ restroom. It reached the same answer, but for different reasons.154 Many of the circumstances mirrored the facts in the Mathis case, with the following factual differences: Plaintiff Susan, a transgender girl enrolled in the Asa Adams School (“the School”) in Orono, Maine, was in middle school when she filed suit.155 Prior to entering fifth grade, Susan received a diagnosis of gender dysphoria and “[s]chool officials recognized that it was important to Susan’s psychological health that she live socially as a female.”156 Susan’s parents and the School established a 504 plan,157 pursuant to which the use of shared female facilities was recommended, unless it “became ‘an issue,’” in which case, the “unisex staff bathroom” was available.158 Subsequently, the School announced that it would require Susan to use the staff restroom.159 This decision followed a series of events during which a boy repeatedly followed Susan into the girls’ restroom.160

The court examined the relationship between the Maine Human Rights Law’s prohibition against discrimination based on “sexual orientation”161 in areas of public accommodation and education and a provision of the Sanitary Facilities law, requiring that a school “provide clean toilets in all school buildings, which shall be . . . [s]eparated according to sex.”162 In reconciling these provisions, the court noted that the Sanitary Facilities law “establish[es] [no] guidelines for the use of school bathrooms. Nor . . . how schools should monitor which students use which bathroom, and it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities.”163 Ultimately, the court held that the School’s conduct constituted unlawful discrimination on the basis of sexual orientation because she was treated differently from other students “solely because of her status as a transgender girl.”164

In recognizing that “where young children are involved, it can be challenging for a school to strike the appropriate balance between maintaining order and ensuring that a transgender student’s individual rights are respected and protected,”165 the court cautioned that its holding should “not be read to require schools to permit students casual access to any bathroom of their choice.”166 Rather, the decision stands for the narrow proposition that, where a child’s “psychological well-being and educational success depend upon [using the] bathroom consistent with her gender identity, denying access to [that] bathroom constitutes sexual orientation discrimination” under Maine law.167

Both the Mathis and Doe courts were at least partially persuaded by the fact that these trans-plaintiffs’ choice of restrooms was an act that constituted a natural expression of their gender identity.168 Although neither court expressly invoked the First Amendment in support of their ultimate holdings, these decisions set the stage for the proposition that gender expression is conduct that falls within the ambit of the First Amendment.

V. Resolving the Transgender Divide – Gender Expression as Protected Speech

With the majority of states and municipalities having enacted anti-bullying and anti-discrimination laws and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.

Some litigants have advanced the innovative gender-expression-as-protected-speech argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear feminine apparel and accessories;169 to an employer’s refusal to allow a female employee to wear a skirt instead of pants;170 and even to an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery.171 Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving protection under the First Amendment.

The Supreme Court has long recognized that the First Amendment’s protective umbrella “does not end at the spoken or written word.”172 Indeed, it is well established that some forms of expressive conduct are “sufficiently imbued with elements of communication” as to constitute speech that falls within the aegis of the First Amendment.173 The threshold burden is not an onerous one. “[A] narrow, succinctly articulable message” is not a condition precedent to receiving constitutional protection.174 In the past, the Supreme Court has acknowledged the expressive nature of students’ donning black armbands in protest of the United States’ military involvement in Vietnam;175 a sit-in by African-Americans to protest segregation;176 the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam;177 and picketing on an array of issues.178

In arguing that particular conduct possesses sufficient communicative elements to invoke the First Amendment, a litigant must demonstrate “[a]n intent to convey a particularized message . . . and . . . [that] the likelihood [i]s great that the message would be understood by those who viewed it.”179 There is no doubt that a transgender student’s gender expression has communicative qualities.180 Courts have found that students express their masculinity or femininity, and other aspects of themselves, through the way in which they dress,181 style their hair,182 and accessorize their outfits.183 Similarly, the manner in which a transgender student chooses a restroom designated for a particular sex expresses her unique gender identity.

Applying the conduct-as-speech184 test to Jill’s decisions to dress and behave in conformance with her gender identity—including her desire to use the girls’ restroom—it is clear that Jill’s conduct satisfies both prongs of the analysis.

 A. Bathroom Choice as Symbolic Conduct Communicating a Particularized Message About                     Gender Identity

The first prong of the conduct-as-speech inquiry asks whether a transgender student intends to convey a particularized message through her conduct.185 Because school-age children feel strong pressure to fit in, and students suffering from gender dysphoria desire to be accepted as a member of the gender with which they identify, communicating a message to their peers through dress, mannerisms, and other symbolic conduct is exceptionally important.186 “Strong[ly] felt pressure for gender conformity . . . is normative for young children, who tend to regard gender stereotypes as moral imperatives.”187

Where the stakes are so high, and the desire to be understood and accepted so critical to their well-being, transgender students’ need to communicate a strong message through their behavior and self-expression is undeniable.

At least one court has found that a transgender student’s ability to express her gender identity was important to her health and well-being.188 This transgender student’s “dressing in clothing and accessories associated with the female gender” was “not merely a personal preference but a necessary symbol of her very identity” that “express[ed] her identification with that gender.”189 Unlike a “generalized and vague desire to express [one’s] middle-school individuality,”190 a transgender student’s efforts to convey her gender identity, and ultimately her personhood, through expressive conduct inherently convey a particularized and important message.

Likewise, an individual’s conduct in using a restroom designated as either “male” or “female” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.191

The second prong of the expressive-conduct-as-speech inquiry considers whether the expressive conduct constitutes a message that has a great likelihood of being “understood by those who observe the conduct.”192 In the case of a transgender student, the appropriate audience at the core of the inquiry is the school faculty and student body.193 A transgender girl, like Jill, who was once known by her peers as a boy, can easily establish through testimony that her peers understood “that she is a biological male more comfortable wearing traditionally ‘female’-type clothing because of her identification with that gender.”194

At a very early age, children begin to understand that certain articles of clothing (e.g., dresses, high heels, tutus) are feminine and certain gender-specific behaviors express a message to others about an individual’s self-identification with one of two gender classifications.195 “A child’s awareness of being a boy or a girl starts in the first year,” and soon thereafter, children become aware of traditional “gender role behavior—that is, doing things ‘that boys do’ or ‘that girls do.’”196 Gender expression constitutes speech because it conveys a symbolic message, a proverbial “short cut from mind to mind.”197

A transgender individual’s choice of which bathroom to use is as natural and effortless as the ability of others observing that choice to understand its message. Consider observing an androgynous or gender-ambiguous person in public. The only overt expression of gender identity you may recognize is her choice of restroom. Because it is socially understood that a person uses the restroom that corresponds with her gender, restroom choice conveys significant information about an individual’s gender identity. Accordingly, demonstrating that a transgender student’s peers understood that the student’s behavior, including restroom use, intended to convey his or her gender identity should not be a significant hurdle to overcome.198

 B. Scrutinizing School Suppression of Gender- Expressive Speech

Once a court determines that a transgender student’s conduct, such as using the restroom that corresponds with her gender identity, constitutes symbolic speech that was understood by those perceiving it, the school’s restriction of such speech will be subject to judicial scrutiny. If the school’s conduct is aimed at suppressing the content of the speech, this will be an almost impossible hurdle for the school to overcome since “the most exacting scrutiny” will be applied.199 Only restrictions enacted for a legitimate and important state purpose, rather than those aimed at suppressing controversial speech, can justify the restriction on free speech.200 Thus, while the “government generally has a freer hand in restricting symbolic conduct than it does in restricting the written or spoken word,” the government may not censor conduct because of its expressive impact.201

It is well-established that “students . . . [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”202 Indeed, “[p]ublic school students enjoy a degree of freedom of speech . . . that is balanced against the added concern of the need to foster an educational atmosphere free from undue disruptions to appropriate discipline.”203 In its landmark decision in Tinker, the Supreme Court held that symbolic student conduct was protected unless the “facts . . . might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”204 Thus, so long as a transgender student’s behavior in using his or her preferred restroom does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” it should be entitled to First Amendment protection.205

Coy Mathis used the girls’ restroom in her Colorado elementary school without incident.206 In fact, the record reflected that Coy’s peers were socially accepting of her gender expression.207 Where a transgender student’s restroom use occurs without incident, there is no cause for school administrators to anticipate disruption to the classroom to justify a school’s suppression of the transgender student’s symbolic conduct.208 The Supreme Court has cautioned, “[T]he mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”209 Courts have been unwilling to “simply defer to the specter of disruption or the mere theoretical possibility of discord.”210 Certainly, a school cannot restrict speech based upon “undifferentiated fear or apprehension of disturbance.”211

Schools must also proceed cautiously when an isolated incident actually occurs on campus resulting from disapproval of a transgender student’s gender expression. Much like the “gay panic defense” advanced by counsel during the Lawrence King murder trial,212 school officials can mistakenly place blame upon the “speaker” when incidents of violence or harassment are targeted at transgender students. For example, in Doe v. Clenchy, instead of disciplining J.M. for harassing Susan on multiple occasions, the school penalized Susan by rescinding her right to use the girls’ restroom.213 This type of punitive response to Susan’s and other transgender students’ protected speech violates long-standing First Amendment principles by granting the listener an intolerable, majoritarian heckler’s veto.214

The heckler’s veto doctrine cautions the government from punishing the speaker, who is otherwise engaging in peaceful speech, merely because her speech “stir[s] people to anger, invite[s] public dispute, or br[ings] about a condition of unrest.”215 The United States Supreme Court has been a robust protector of free speech, even when such speech has been considered extremely offensive.216 The Court has observed that:

Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.217

Peaceful expressive conduct satisfying the Tinker218 standard that is otherwise met by violence, threats or other retaliatory conduct by persons offended by the speech cannot lawfully be suppressed under the heckler’s veto doctrine.219

A school’s response to a transgender student’s gender expression, including the use of the restroom that corresponds to his or her gender identity, must be motivated “by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”220 In fact, the underpinnings of the First Amendment invite public dispute and shield “the sphere of intellect and spirit” from government intrusion.221 Scholars have discussed the values sought by free speech protection as a guide to deciding whether a particular government speech restriction is consistent with the First Amendment.222 While scholars and judges define these values differently, the majority agree that the First Amendment protects a person’s right to express her identity, even when the government or, in this instance, other children are uncomfortable with that identity.223

At the essence of a transgender student’s behavior is her attempt to be recognized for her own, unique identity. Although some schools, and some students, may feel uncomfortable with a gender non-conforming student’s gender expression, discomfort with the content of a speaker’s message is not a valid reason to restrict the otherwise peaceful speech. A school’s action in banning a transgender student from using the restroom that corresponds with her gender identity impermissibly validates the legally reprehensible heckler’s veto.

Finally, safeguarding the right of transgender individuals to freely express their gender identity is a value that implicates First Amendment jurisprudence.224 This value is particularly imperative in public schools, where teachers and administrators are capable of influencing children during their most formative years, which can help shape the character of this nation’s future generations. As early as 1837, courts applied the in loco parentis principle to schools.225 According to this doctrine, public schools are charged with parent-like responsibilities during the hours that children are in their custody.226 In service of those responsibilities, public schools should foster an environment that enables growth in their students, focusing particularly on the development of a positive self-image and a healthy tolerance for individual differences.

Invoking this quasi-parental relationship, it is a public school’s right, or perhaps even obligation, to encourage students to embrace the non-threatening differences of their peers. By respecting transgender students’ non-threatening, symbolic gender expression, schools not only satisfy the First Amendment, but also model tolerance for individual differences.

At this exceptional moment in history, with issues affecting transgender individuals at the vortex of national debate, public schools, standing in loco parentis, have a unique opportunity to transform social attitudes by modeling inclusiveness and acceptance for their students. Public schools cannot violate the First Amendment based solely on “an urgent wish to avoid the controversy which might result from the expression.”227 Instead, “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance,”228 like the symbolic conduct expressed by a transgender student simply striving to fit in, falls within the protective umbrella of the First Amendment.

Conclusion and Recommendations

While transgender individuals are becoming more prevalent in pop culture,229 transgender youth remain at-risk, still plagued by high rates of violence.230 As studies reveal new frontiers of bias, the LGBT community may meet significant hurdles as groups and individuals push through deeply embedded social norms to affect legal change.231 This is especially clear when taking into account the historical legal struggles of minority and marginalized groups.232

A recent academic study revealed that the majority of heterosexual adults hold negative opinions about transgender individuals.233 The negative attitudes were associated with several factors, including political conservatism, endorsement of a binary conception of sex, and lack of personal contact with sexual minorities.234 Transgender rights remain murky because the American public is struggling to fit transgender individuals into an archaic, rigidly fixed legal system.

Due to this uncertainty in the law, trans-plaintiffs, and LGBT plaintiffs generally, have more recently been invoking the courts in search of judicial remedies. Indeed, in late 2012, a Massachusetts District Court held that a prisoner’s gender identity disorder constituted a serious medical need that triggered Eighth Amendment protection, and the Department of Correction’s refusal to provide him with male-to-female sex reassignment surgery constituted deliberate indifference of his serious medical need.235 Moreover, in 2013, the Supreme Court held that the Defense of Marriage Act violated the Fifth Amendment by defining marriage as solely between a man and a woman.236 In making this finding, the Court recognized that spouses in same-sex marriages were entitled to the same rights and privileges as spouses in heterosexual marriages.237 With these cases and others, there is an emerging recognition in the law of the rights of persons with non-traditional sexual choices, orientations, and identities.

While the law takes baby steps to catch up with science, medicine, and society’s acceptance of non-majoritarian ideas, transgender individuals, and especially transgender youth, need immediate proactive reform. Schools, sitting in loco parentis, are left blindly navigating these difficult issues as they struggle to balance the interests of students struggling with gender identity alongside the safety and protection of the other students in their custody.

To remedy this legal abyss, the following steps should be adopted. First, Congress should amend the ADA and the Rehabilitation Act so that the definition of disability no longer excludes conditions related to gender dysphoria and gender identity disorders. Second, while the law has traditionally recognized only two, rigidly fixed sex classifications, developing a trans-affirmative vocabulary is essential to fashioning new categories of protections for gender non-conforming individuals238 and to informing discussions with children about transgender issues.239

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers . . . demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.240

Because “[i]nescapably, like parents, [teachers] are role models,”241 the first step toward creating a safe school environment for transgender youth begins with modeling and adopting a trans-affirmative vocabulary. Once students incorporate trans-affirmative language into their everyday vernacular, they may begin to think, and eventually act, with sensitivity towards and awareness of their gender non-conforming peers.242

Similarly, schools must adopt sound policies protecting transgender students from bullying and harassment, as consistent with state and local law, and provide a counseling mechanism for both gender non-conforming students and students who are impacted by the gender expression or gender identity of their schoolmates.

Finally, trans-litigants challenging schools’ determinations regarding bathroom/locker room designation, or other designations based primarily on assigned sex, should advance the theory that a transgender student’s gender expression is speech that falls within the protective umbrella of the First Amendment. First, a transgender student’s outward expression of gender, as conveyed through dress, hairstyle, and even restroom use, is undoubtedly intended to convey a message to outsiders about a gender non-conforming student’s gender identity. Second, because fitting in and being accepted are so vital to a youth’s well-being, there can be no doubt that a transgender student’s expressive conduct is intended to, and actually does, convey a particularized message.

Moreover, when well-established First Amendment jurisprudence protects student speech that is not lewd and does not pose a “material disrupt[ion] [to] classwork,” schools should not yield to the heckler’s veto by silencing transgender students’ otherwise peaceful symbolic expression.243 Schools should instead impose discipline upon those students who express disapproval of a transgender student’s gender expression in a violent or disruptive manner.

As the recent legal victories for Coy Mathis and Susan Doe signify, the time is ripe for archaic social norms regarding sexuality and gender identity to be reformed. Meanwhile, public school officials are in a unique position to create a sea of change in the deep-seated negative attitudes toward transgender individuals by fostering open and safe environments for transgender students to express their gender identity, the essence of who they are.

[1].Anna Quindlen, Loud and Clear 224 (2d ed. 2005).

188.Carver, Yunger & Perry, supra note 187, at 96.