The Judicial and Generational Dispute over Transgender Rights

By Stern, Mark Joseph; Oehme, Karen et al. | Stanford Law & Policy Review, Winter 2018 | Go to article overview

The Judicial and Generational Dispute over Transgender Rights


Stern, Mark Joseph, Oehme, Karen, Stern, Nat, Urbach, Ember, Simonsen, Elena, Garcia, Alysia, Stanford Law & Policy Review


     Introduction                                                160 I.   Expanding Definitions of Sex Discrimination                 161 II.  High School Conversations About Transgender Issues          169      A. Student Awareness of Transgender Individuals and Issues  174      B. Student Allies and School Support for Transgender Youth  176      C. Bathroom Use                                             178      D. Other Voices                                             180      Conclusion                                                  182 

INTRODUCTION

As transgender and gender-nonconforming people have gained visibility in American society through government, media, and culture, the issue of their civil rights has stirred widespread debate, perhaps most visibly in the context of education. As one high-profile case illustrates, litigation over assertions of transgender rights has produced two very different views of transgender individuals among federal judges. The difference stems from divergent understandings of the primary privacy interests at stake in these settings: those of transgender students or of their classmates. While courts grapple with questions about privacy, equality, and fundamental liberties, (1) high school newspapers across the county show that many in Generation Z (those born after 1995) (2) are quietly rejecting rigid gender identity norms and the male-female gender binary, defining gender classification on their own terms, and offering support for judicial defense of inclusion and human dignity.

Part I of this Article outlines the evolving meaning of sexual discrimination in the Civil Rights Act of 1964, (3) then describes two contrasting judicial views of the liberty interests involved in transgender rights issues. Part II presents our new data set drawn from views expressed by high school students in school newspapers that furnishes evidence of the attitudes and behaviors of Generation Z. This type of content-analysis study has not been conducted before. While its reach is limited, (4) the study does provide a useful starting point for further research. The data display the voices of young people who are rejecting gender stereotypes and revising societal norms of personal autonomy and classifications. The conclusion asserts that even if a more restrictive view of transgender rights prevails in the short term because of currently dominant political forces, Generation Z has already begun to change our understanding of gender in the twenty-first century.

I. EXPANDING DEFINITIONS OF SEX DISCRIMINATION

Federal courts have long struggled to define precisely what conduct qualifies as sex discrimination. Through Title VII of the Civil Rights Act of 1964, Congress prohibited employers from discriminating "because of... sex" but did not explain what, exactly, this command meant. (5) Congress also outlawed sex discrimination in education, (6) housing, (7) credit, (8) and other contexts. In addition, the Supreme Court concluded that the Equal Protection Clause of the Fourteenth Amendment bars certain forms of sex discrimination. (9) A robust body of federal law now protects individuals against discrimination on the basis of sex in various walks of life. (10)

Still, the precise meaning of "sex discrimination" itself has proved elusive. A law like Title VII obviously forbids employers from mistreating a female worker simply because she is a woman. But it also does much more than that. The Supreme Court has declared that Title VII was designed "to strike at the entire spectrum of disparate treatment of men and women" in employment. (11) It has interpreted this principle to mean that employers may not force women to make larger contributions to pension plans; (12) sexually harass employees, male or female; (13) or exclude women from certain jobs out of concern for the health of a hypothetical fetus. (14) The Court has also held that an employer violates Title VII when it engages in "sex stereotyping"--i. …

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