Every summer, colleges across the country welcome thousands of minors onto their campuses for a variety of residential programs, including sports camps, academic courses and leadership training.
Like adult college students, these minors were historically categorized into one of two boxes—male or female—to determine their housing assignments and many other aspects of the campus experience.
Not so many years ago, administrators took a theoretical approach to transgender students and staff. “What would we do,” the conversation went, “if a transgender staff member applied for a job?” The LGBT rights movement was in its infancy, university administrators did not list their preferred pronouns in their email signatures, and only the most forward-thinking institutions had solidified policies.
Today, mirroring the population as a whole, a growing number of minors identify as transgender and nonbinary, raising unique legal and policy questions that don’t apply to adult college students.
National legal landscape
Recently, the Supreme Court heard oral arguments in several high-profile cases that will help decide the future of transgender rights in the United States. The court will address whether existing federal bans on sex discrimination also prohibit discrimination based on gender identity and sexual orientation.
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex and national origin. Recent decisions out of the United States Court of Appeals for the 2nd, 6th and 7th circuits hold that Title VII’s reference to “sex” includes sexual orientation and transgender status. Courts look to cases interpreting Title VII when evaluating claims under Title IX of the Education Amendments Act of 1972, which protects students from sex discrimination by any educational program that receives federal funding. So these decisions could have a far-reaching impact on transgender rights, especially where state law does not offer protection to the transgender community.
A growing number of minors identify as transgender and nonbinary, necessitating unique legal and policy considerations that don’t apply to adult college students.
However, other circuit courts have conflicting views. The 11th Circuit, for example, recently held that discrimination based on sexual orientation is not actionable under Title VII.
The departments of Justice and Education also take the position that Title VII and Title IX do not prohibit discrimination on the basis of sexual orientation and transgender status. Before turning to the Supreme Court’s forthcoming resolution of these questions, let’s consider how universities approach transgender minors on campus.
Four common approaches to transgender minors on campus
The residential experience for minors on campus raises unique legal and policy questions, which go far beyond the “bathroom debate” because participants and staff live together in close quarters. Broadly speaking, most campus-based residential programs for minors fall into one of four categories in their approach to the transgender and nonbinary population:
- Going beyond traditional accommodations. The most progressive campuses offer multiple housing options, which may include gender-neutral and all-gender housing and/or housing for transgender community members and allies of the same gender identity. With policies that directly address pronouns, bathroom signage and gendered application questions, these campuses ensure that the gender-nonconforming community is affirmatively welcome. In 2016 The Cooper Union in New York, for example, became the first college in the country to remove gendered signs from every bathroom on campus.
- Making accommodations in a traditional campus setting. While offering traditional housing options, many campuses have explicit policies to assign housing based on gender identity and housing preference rather than biological sex. These campuses have put varying levels of thought into larger policies regarding areas such as signage and application questions.
- Not having a policy. Some campuses simply do not have transgender policies. According to one assessment, in 2013, only 10% of campuses had nondiscrimination policies that supported transgender students. While this number has significantly increased over the past six years, many campuses still lack clear policies and institutional consistency in their response to the needs of the transgender community.
- Rejecting the needs of transgender participants. Some campuses discourage transgender students from attending, refuse to hire transgender staff, and make housing and other decisions based on biological sex only.
Will the Supreme Court eliminate the gray area?
Up to this point, noninclusive campuses have been in a legal gray area depending on location. Assuming state law does not dictate a particular outcome (and in many cases it does), then campuses within the 2nd, 6th and 7th circuits likely can’t discriminate against transgender staff; campuses within the 11th Circuit can; and campuses in other circuit courts face conflicting precedent. This is why the Supreme Court has stepped in.
In oral arguments that took place on October 8, the court’s four-justice liberal contingent embraced the view that Title VII should prevent “invidious discrimination,” in the words of Justice Sonia Sotomayor, on the basis of sexual orientation and transgender status.
Not surprisingly, the court’s five conservative justices seemed reluctant to extend Title VII to protect the transgender community, observing that sexual orientation and transgender status were not something Congress considered when passing Title VII many decades ago.
As the Supreme Court comes to a decision, some experts believe that Justice Neil Gorsuch, a Trump appointee, holds the key vote that could tip the case in favor of the liberal view.
The law doesn’t address certain questions for transgender minors
Regardless of the Supreme Court’s decision, the gray area is not limited to noninclusive campuses. Even the most progressive programs run into complex policy questions related to transgender minors. Imagine a student who arrives to campus identifying as a different gender than the one declared by their parents on the registration forms.
- If the minor requests to be housed based on their gender identity, should the university contact the minor’s parents for permission?
- What should the university do if the parents demand that the minor be housed based on their biological sex?
- When a transgender minor is housed based on their gender identity, what happens if their roommate’s parents contact the university with questions?
- What should the university say that wouldn’t violate the transgender minor’s right to privacy?
The law is evolving, but mostly silent on these and many other questions. While progressive lawmakers in certain states have proposed legislation that recognizes student gender preferences without the need for parental consent, conservative legislators have proposed laws requiring schools to obtain parental permission whenever a minor requests a change to their biological sex. This particular debate is likely to play out for many more years—no matter what the Supreme Court decides.
Moving forward
Transgender minors raise certain questions that simply don’t apply to adult college students. As the law develops, some of the most complex questions may have clearer answers than they do today.
Read: Accommodating transgender students on college campuses
In the meantime, universities that host youth programs would be well served to develop comprehensive policies for gender-nonconforming participants and thus avoid scrambling to implement inelegant solutions when an unexpected gender challenge arises on opening day.
As campuses work on their policies, they should be sure to comply with state laws, which are often more developed and go far beyond federal protections. New York, as one example, recently passed the Gender Expression Non-Discrimination Act, which makes gender identity and gender expression protected classes under the New York Human Rights Law. Perhaps we will see more states and the federal government follow suit in the near future.
Isaac Mamaysky is a partner in Potomac Law Group, which has a practice dedicated to the unique legal needs of institutions that host minors on campus. Contact him at [email protected].
