Sexual Orientation & Gender Identity

Harvard Law Review, April 2014 | Go to article overview

Sexual Orientation & Gender Identity


CHAPTER TWO

TRANSGENDER YOUTH AND ACCESS TO GENDERED SPACES IN EDUCATION

"All students should have the opportunity to fully participate and succeed in school." (1) While this statement might appear uncontroversial at first blush, the context in which it was made was anything but. Last summer, California Governor Jerry Brown signed into law one of the most sweeping protections of transgender youth in the country; AB 1266 (2) allows these students to use restrooms and play on sports teams that align with their gender identities regardless of their status in official school records or their sex assigned at birth. (3) Supporters of the bill applauded it as a major step forward in ensuring that transgender students statewide received rights that had already been granted in a few school districts. (4) Shortly after the signing, however, opponents vowed to strip the new law from the books, decrying it as a "grotesque[]" violation of other students' privacy (5) and "a horrible attempt by activists to strip society of all gender roles." (6) With public opinion evenly split, (7) one Republican member of the California State Assembly has vowed to join (in his words) "[m]any of the parents [he has] heard from" in pulling his children out of public schools. (8)

California's heated, high-profile debate over how school districts should treat transgender students is symptomatic of a larger nationwide discussion. As these students begin to publicly embrace their gender identities, the government is forced to balance these children's right to participation against traditional gender divides, opposition from parents, and potential disruption for other students. Moreover, given that all fifty states have some form of compulsory education, (9) schools must find a way to treat fairly all students who are legally required to be there. This Chapter has two aims: First, it will describe the efforts that schools, administrative agencies, and legislatures have made as they seek to balance these competing interests. Second, and perhaps more critically, it seeks to provide an animating principle to guide policymakers as they make these decisions. Specifically, this Chapter argues that the inclusion of transgender students in traditionally gendered spaces and deference to these students' conceptions of their own gender identities can help schools further their academic missions by improving scholastic outcomes and sending messages to the wider student body about diversity and community. While, as a practical matter, this Chapter's discussion largely deals with spaces aligned with one side or the other of the predominant gender binary, (10) it also seeks to spark further discussion regarding reasons and methods for deconstructing this binary as society moves forward, particularly as non-gender-conforming children become more visible.

The Chapter will proceed in five sections. Section A explores recent trends toward people coming out as transgender at younger ages--thus bringing the question of transgender rights to the educational sphere for the first time. Section B surveys justifications underlying the public education system, emphasizing socialization, participation, and the teaching of critical thinking and expression. Section C analyzes two areas in which schools have confronted questions related to transgender students and their right to access gendered spaces, measuring these questions and their responses along the yardstick of the goals laid out in section B. Section C.1 examines access to school restrooms, focusing on several recent high-profile cases as well as recent legislation in California; section C.2 looks at school sports, discussing how the goals of scholastic athleticism inform potential responses to transgender students seeking to compete with their peers. Section D considers potential counterarguments to the animating principle of inclusion of and deference to transgender students, while section E charts a potential path forward that goes beyond the argument advanced in the rest of the Chapter. …

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