College and university administrators, already aware of their obligations to comply with Title IX of the Education Amendments Act of 1972, (“Title IX”), are facing rapid changes and uncertainty in addressing the rights of transgender students. Though issues involving the rights of transgender students were rare as recently as a few years ago, it is likely that almost all post-secondary schools will need to accommodate the rights of transgender students in this decade. While most administrators want to comply with Title IX and other applicable laws, knowing what is expected of colleges and universities is not clear as the law is evolving along with social attitudes concerning transgender individuals.
Title IX Begins the Analysis
As the general public now knows, through recent scandals involving Penn State, Florida State University and other institutions, Title IX prohibits sex and gender discrimination against students and others. This includes intentional discrimination and disparate treatment and has been commonly associated with funding for female athletics. However, it is far broader than athletic funding and bars sexual harassment and assaults perpetuated by students against other students, faculty against students and faculty against other faculty. Colleges and universities that are deliberately indifferent to claims of sexual abuse or sex based discrimination, may be liable for damages, and in some situations punitive damages.
In the context of transgender students, some courts were initially hesitant to apply Title IX to protect the rights of transgender students. They reasoned that transgender discrimination was not a form of sex discrimination and that it fell outside of Title IX. Nevertheless, the trend is to bar discrimination against transgender students within Title IX. The United States Department of Education’s Office of Civil Rights, takes the position that Title IX protects transgender students.
What Constitutes Title IX Transgender Discrimination?
College and university administrators, in addressing this question, often state that if they treat all students in a sexually neutral manner, without regard to their gender, they will comply with Title IX. This sort of thinking understates the complexity of the issues they face.
There are multiple opinions amongst transgender students as to how they wish to be treated and what rights they assert. This is not surprising as people have different opinions on all topics. There are some in the transgender community that identify with what society has often considered to be common male or female traits and live as either a male or female. Others refuse to be labeled and reject having to choose between a female or male identity and wish to be treated as a person without sexual categorization. Some are transitioning from one gender to another and may be in a process of definition. There are those who are willing to be open about their transgender status, while others closely guard their privacy. Adding to the complexity is that college is a time for taking stock of who each student is as individual and where the student fits in the world.
In a practical sense, administrators need to realize that one size does not fit all and that the various transgender experiences require sensitivity to the needs of each situation. For example, assume that a student is a transgender female (male to female) and is a freshman who identified in high school as a male, but in the summer between high school and college, began to present herself to the world exclusively as a female. Also assume that the student selected college housing with other female students. Colleges when faced with this issue, assuming the school realizes the student’s gender transition, it has to make a decision. Do they accommodate the student’s choice and place the student in female housing? What if they student does not wish her privacy to be breached and wishes that the other roommates not be told of her transgender status? Do the other roommates have a right to reject their roommate if the student’s privacy is overcome or the student discloses her status?
When faced with these questions, many colleges will seek to protect the transgender students asserting that their rights to privacy are protected by the federal Family Educational Rights and Privacy Act. Nevertheless, such colleges must be ready to face the threat of lawsuits for fraud or other similar claims from students and their parents who may learn that they reside with a transgender student. Do the colleges make housing changes based upon such objections or do they refuse to do so? While there are no reported cases yet addressing this particular issue, or even similar issues, the better way to resolve the matter is to listen carefully to the transgender student and seek to understand her position. If colleges begin to force decisions on all parties, without regard to the rights and needs of the transgender student, then colleges will be placing themselves into precarious legal positions.
What about housing limited to transgender students? There are colleges that offer transgender students the option of being housed separately from non-transgender students. This decision has not been universally accepted in the transgender community and has not received judicial scrutiny. On the one hand, if the decision is voluntary, one may argue that the student made a choice and that the school is merely accommodating the student. However, segregating students, even if chosen by the student, on account of race, is not lawful, why should it be acceptable for transgender students? If schools would not approve of self-restricted gay, lesbian or bisexual housing, then restricted transgender housing makes no sense either.
Assume that a transgender male student is enrolled in a vocal class. The student wears breast binding clothing to minimize his breast tissue. The student also requests that he be permitted to sing with the breast binder in place as he would be embarrassed without it. The student requests that he be allowed to sing in a lower register than is acceptable for his voice. The professor, though, is of the opinion that the binder interferes with the student’s ability to breath and limits his singing proficiency. Further the professor believes that the student is straining his voice to sing below its current range. Should the student be allowed to decide what he wants to wear and what range to sing in? Or, does the college have the right to set academic standards without regard to the student’s requests?
It would be difficult to assert that the school’s decision to enforce its academic standards does not impact the student’s rights as a transgender person. However, courts may choose to defer to colleges and universities concerning their academic standards. Breathing properly and singing according to one’s voice are elements of singing classes. Before doing so, courts will likely seek an accommodation for the student, if at all possible, while preserving academic standards.
Carefully Consider the Issues
Besides seeking legal counsel, administrators need to accept that today transgender students are part of every campus. The law is evolving and there are no bright line answers to the questions posed. Schools, though, can limit their exposure by listening to the transgender students as individuals and seeking to accommodate individual needs while maintaining educational standards. The law will, as it usually does, provide some guideposts on the path to follow.
Stephen A. Mendelsohn, shareholder with the litigation practice of international law firm Greenberg Traurig, may be reached at [email protected].
