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Including transgender and gender non-conforming students in schools: Commemorating LGBTQ History Month

Including transgender and gender non-conforming students in schools: Commemorating LGBTQ History Month

Transgender pride flag with words "protect trans students"


October is LGBTQ History Month, when Americans across the country remember and celebrate individuals who have fought for the inclusion of all members of the LGBTQ community.  

The fight is ongoing in the nation's capital and in state legislatures across the United States. While Americans have witnessed many victories for the LGBTQ community in recent years, we also continue to confront great challenges. In particular, transgender and gender non-conforming Americans continue to experience discrimination in housing, employment, education, and other facets of American life. Transgender and gender non-conforming people have long been fighting discrimination. During LGBTQ History Month, we remember these activists and their work to advance LGBTQ equality. LGBTQ History Month is also an opportunity to remember that history is being made every day as the work continues.  

The Reform Movement's Urgency of Now: Transgender Rights Campaign is a reflection of the ongoing discrimination that transgender Americans—and in particular, transgender students—face in our nation's schools. In honor of LGBTQ History Month, the RAC is looking at the history of the recent battles over the inclusion of transgender students in schools.  

The policy landscape that affects transgender students today is shaped on three levels: school boards, state governments and the federal government. 

Much of the recent news concerning the treatment of transgender students in schools reflects disagreement between local policies and the federal government's interpretation of Title IX. As the National Center for Transgender Equality (NCTE) states, "Title IX is a federal law that makes sex discrimination illegal in most schools. Most courts who have looked at the issue have said that this includes discrimination against someone because they are transgender or because they don't meet gender-related stereotypes or expectations."  

Title IX is a cornerstone of the network of laws and policies designed to protect transgender students. As Eisendrath Legislative Assistants Lizzie Stein and Maya Weinstein wrote last August, "While the law was initially passed with a focus on prohibiting gender discrimination in collegiate athletics, it addresses discrimination in many areas of the educational experience. Title IX supports students’ ability to access an education in an environment free from discrimination and hostility. In particular, students who experience sexual violence and transgender and gender non-conforming students rely on the law."  

But because it is up to the federal government to enforce Title IX, the government must also interpret how the law ought to be implemented. While the courts have interpreted Title IX in such a way to protect transgender and gender non-conforming students, it was in 2016 that the federal government stated that Title IX affirms the right of transgender and gender non-conforming students to use educational facilities and participate in educational programs consistent with their gender identity. This was a welcome step in the fight to affirm the right of transgender and gender non-conforming students to be treated equally under the law.  

President Trump, however, reversed course on the federal government's position concerning Title IX and the protections it affords transgender and gender non-conforming students shortly after he took office. This led to school boards across the country facing pressure to clarify how they would respond to the changing guidance.  

At the state and local level, nefarious "bathroom bills" have cropped up denying students (and other transgender people) the right to use bathrooms in schools and other public buildings consistent with their gender identity. These bills are often justified by "public safety" concerns. These claims are both offensive and baseless. 

And yet, the National Council of State Legislatures reports that in the latest legislative session of state houses around the nation, 16 states "have considered legislation that would restrict access to multiuser restrooms, locker rooms, and other sex-segregated facilities on the basis of a definition of sex or gender consistent with sex assigned at birth or 'biological sex,'" six states "have considered legislation that would preempt municipal and county-level anti-discrimination laws," and 14 states "have considered legislation that would limit transgender students' rights at school." In 2017 alone 36 states considered legislation that would in some way make it easier to discriminate against transgender and gender non-conforming people on account of their gender identity. Schools comprise a particular focus of these efforts.  

This LGBTQ History Month, we remember that history is being written every day. We draw strength and inspiration from the countless LGBTQ Americans who have fought and struggled to create a truly inclusive nation. This month is about looking to the past as we charge ahead in uncertain territory.  

Noah Fitzgerel is an Eisendrath Legislative Assistant at the Religious Action Center of Reform Judaism in Washington, D.C. His portfolio includes church/state issues, LGBTQ equality, hate crimes, interfaith issues, and civil liberties. Noah graduated from Brown University and is a member of Temple B’nai Shalom in Fairfax Station, VA.

Noah Fitzgerel

Published: 10/10/2017