Resisting the Legal Assault on Transgender and Gender Non-Binary Students

by | Feb 21, 2024

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About Luke A.Boso

Luke Boso joined the Southwestern faculty in the summer of 2023, where he teaches Constitutional Law I, Constitutional Law II, and Criminal Law. Professor Boso began his legal career by clerking for a state court judge in West Virginia, followed by a year in private practice during which he litigated issues of police brutality and misconduct in Southern California. Professor Boso then began his career in legal academia as a Law Teaching Fellow from 2011-13 with the Williams Institute at the UCLA School of Law. The Williams Institute is a think tank devoted to advancing LGBTQ+ rights through law and policy. From 2013-14, Boso was an Associate Professor at Savannah Law School, where he taught constitutional and property law courses. From 2014-23, Professor Boso held appointments at the University of San Francisco School of Law, where he primarily taught constitutional and criminal law courses in both the day and evening programs; he also taught Family Law, Remedies, and an Education Law seminar. Professor Boso also served as a Visiting Professor at the UC College of the Law, San Francisco, teaching Constitutional Law II in the fall semesters of 2019-21.

Since the Supreme Court’s 2015 decision in Obergefell v Hodges striking down same-sex marriage bans across the United States, conservative States and localities—perhaps motivated by the politics of resentment stemming from a perceived attack on traditional sexual and gender values—have proposed and enacted a new crop of hostile measures targeting the LGBTQ community. In 2023 alone, the ACLU tracked 510 anti-LGBTQ bills nationwide, 84 of which became law. In just the first two months of 2024, 462 anti-LGBTQ laws have already been proposed in 41 States.

These legislative efforts cover wide-ranging issues affecting the lives of LGBTQ people, but an outsized portion relate to transgender and gender non-binary children in the context of education: addressing pronouns in the classroom, sex-segregated facilities and activities in schools, and inclusion in curricula. For trans and gender non-binary youth, the recent legislative onslaught is particularly alarming given this group’s heightened vulnerability to discrimination, economic insecurity, and poor mental health outcomes. For example, a report released by the National Center for Transgender Equality found that 78% of K-12 students in this group have experienced harassment, 35% have experienced physical assault, and 15% drop out prior to graduation. Simply put, trans and gender non-binary students need legal protection rather than legal scorn.

In the United States, the legal rights and duties governing K-12 education are structured in a complicated shared partnership between all levels of government. In 1973, the Supreme Court in San Antonio v Rodriguez made clear that providing education is a State and local function, rejecting the claim that the Constitution safeguards an affirmative education right stemming from the Fourteenth Amendment’s liberty guarantee. Accordingly, and because of explicit education clauses in State constitutions, State legislatures and local education boards have outsized power in shaping children’s educational experiences. Still, trans and gender non-binary students can rely on federal safeguards to combat conservative anti-LGBTQ measures in the K-12 context, albeit with varying degrees of likely success.

One promising source of protection is Title IX of the 1972 Education Amendments to the Civil Rights Act. Title IX prohibits schools receiving federal funding from engaging in discrimination on “the basis of sex.” Whether this prohibition extends to LGBTQ students has been hotly contested over the past decade. The Department of Education during the Obama administration issued guidance to schools, clarifying that the term “sex” includes sexual orientation and gender identity. The Trump administration sharply changed course by issuing its own guidance greenlighting school practices that rely on students’ birth-assigned sex rather than gender identity or expression. In 2020, however, the legal landscape shifted again when the Supreme Court in Bostock v Clayton County held that the term “sex”—in a different federal statute governing employment—encompasses sexual orientation and gender identity. Relying on Bostock, the Biden Administration revived Obama-era guidance, directing schools to protect LGBTQ students by honoring their gender identity and expression regardless of the sex they were assigned at birth (with some exceptions). The Supreme Court has so far declined to decide whether this interpretation of Title IX is a legal requirement, and thus Title IX’s protective reach remains tenuous, especially if Donald Trump wins the 2024 presidential election.

The Fourteenth Amendment’s Equal Protection Clause is another powerful tool for securing trans-inclusive education protections. While the Constitution does not guarantee the provision of education, it does require States and localities to treat students equally when they undertake this important function. In cases like United States v Virginia and Mississippi University for Women v Hogan, the Court held that educational institutions cannot rely on sex in ways that reinforce or perpetuate stereotypes about the nature of men and women. Trans advocates in federal courts across the country are now arguing that the Constitution’s prohibition of sex discrimination similarly prohibits schools from requiring students to use facilities, participate on athletic teams, and go by pronouns that privilege birth-assigned sex. These arguments are having some success. Specifically, the alleged stereotypes at play here relate to expectations about how boys and girls should behave and be organised according to essentialist understandings of sex that do not comport with lived experiences across the gender spectrum. Further, even if transgender discrimination is not a per se sex classification, ‘animus’—or a bare desire to harm a politically unpopular group—is never a legitimate governmental purpose for differential treatment. As more States enshrine exclusionary measures imbued with stereotyped assumptions about boys and girls, or backed by raw prejudice against the trans community, the Supreme Court must step in to settle simmering constitutional disputes about the baseline requirements of equality.

Transgender and gender non-binary students’ ability to access meaningful educational opportunities is unquestionably under assault. States and localities are engaged in hostile actions that effectively seek to erase or deny these students’ identities. While governing law remains ambiguous on the precise contours of legal protections, there are good reasons to believe that federal courts will apply common sense, a basic sense of humanity, and existing precedent to validate the dignity of a vilified group desperately in need of protection.

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