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Experts weigh in on Title IX transgender regulations
SARAH J. MOORE
KAREN SELVA M.D.
Special Columnists
Published: July 27, 2016
Across the nation, leaders at federally funded educational institutions are grappling with how to best implement and support Title IX regulations to facilitate a safe, discrimination-free environment for transgender students before school kicks back up in the fall. In light of the recent transgender rights movement, the U.S. Department of Education and U.S. Department of Justice published a joint guidance on May 13, 2016, to help school districts, colleges and universities ensure the civil rights of transgender students through guidelines that reflect Title IX protections.
Although many educational institutions are working diligently to review and revamp their policies and procedures to achieve best practices, ten states (Texas, Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin) have filed federal litigation challenging the joint guidance and its implementation in those states. With this transition presenting unique challenges for all involved, it’s more critical than ever before that educators receive legal- and medical-based training on how to best support transgender students.
With this in mind, we are co-authoring a series of articles that will present a unique collaboration of the legal and medical perspectives. The series will examine a variety of practical issues that educational institutions will encounter while supporting transgender students, including how to handle student transition, privacy, confidentiality, record keeping, sex-segregated activities and facilities, and other related matters. Although our work does not constitute legal or medical advice, it will hopefully foster more substantive conversations and continued development of best practices at a local level.
However, in order to successfully navigate compliance with the law in a manner that best supports transgender students, we must first understand what the term “transgender” actually means and the challenges faced by these individuals. With this knowledge, leaders will gain greater familiarity with available resources and be more informed in their decision making.
What Does It Mean to Be Transgender?
For purposes of Title IX, the recent joint guidance clearly defines transgender as describing “individuals whose gender identity is different from the sex they were assigned at birth.”
In order to understand and grasp this concept, one must first know the difference between the terms “sex” and “gender,” as they are not interchangeable. Someone’s sex is based on one’s physical attributes, determined through a physical exam. If there is a penis present at birth, the child is assigned male. Likewise, if a vagina is present, the child is assigned female. Although rare, if there is a disorder of sexual development in utero, then the child is assigned a sex termed “intersex.” In that case, a multidisciplinary medical team will work with the parents to help decide the most appropriate sex of rearing for the child.
On the other hand, gender is based on what a person feels or identifies as on the inside, as opposed to on a physical exam. Gender is not necessarily binary (i.e., either male or female), but instead a continuum of maleness to femaleness (or vice versa). A person may identify his or her gender as somewhere along this spectrum, or at one end. “Gender identity” is the term used to describe how a person identifies on this gender spectrum, while “gender expression” is how a person communicates his or her gender to others. Gender expression may not always match one’s gender identity as people often feel societal pressure to conform if they do not feel safe in expressing their true gender identity.
It’s important to remember that “although sex of rearing (assigned sex) can be assigned at birth, gender identity can only be assumed and not, in fact, known until an individual achieves a particular level of psychological development and self-awareness” (Rosenthal, JCEM Dec. 2014). Children can identify their gender by the age of three to five years (some studies even propose that toddlers can know their gender identity at just two years old), and they will be consistent and persistent in their gender identity. However, by age six, children understand societal pressure and the need to conform to fit in, so they may choose not to outwardly express their gender identity. As such, “clinical observations have revealed that a child’s gender identity is resistant to parental or social intervention, whereas gender expressions are more socially malleable” (Vance, Pediatrics Dec. 2014). As more parents and communities are willing to explore their children’s gender identity, a greater number of children are beginning to feel more comfortable in truly expressing how they identify on the inside.
Thus, when someone says they are “transgender,” it means they identify with a gender that is different than their sex assigned at birth. In this case, a person is most often assigned the binary terms “transman” (an individual who identifies as male, but was assigned female sex at birth) or “transwoman” (an individual who identifies as female, but was assigned male sex at birth).
Additionally, it should be noted that in the medical arena, the term “transgender” may also refer to a non-binary identity, such as gender fluid, gender queer, gender diverse or gender non-conforming. These individuals may feel a certain percentage female or male, or may feel more male on some days and more female on others. Although the joint guidance does not squarely address this spectrum of non-binary trans-identity, the fluidity inherent in gender identity issues necessitates a dedicated case-by-case approach to handling implementation of policies and procedures to best support a student self-identifying as transgender.
Step One: Adopting Policies That Support Transgender Students
Key to properly implementing the joint guidance on Title IX regulations is the adoption of policies and procedures that accurately identify the school’s obligations to its transgender students. Although the policies may well be succinct, their implementation will present very unique challenges for all involved. Consequently, training of school administrators and personnel is essential from both a legal and medical perspective in order to best support transgender students.
Step Two: Creating Transgender Student Response Protocol
The most important components of implementation will be the support team and the school’s ongoing response practices in regard to transgender students. Schools should consider creating a transgender student response protocol that is general in nature. Additionally, all core members of any support team should receive specialized training on what transgender means and the dynamics a child confronts in navigating his or her gender identity. This is of special importance because, as the joint guidance explains, confirmation of a student’s gender identity does not require a medical or mental health diagnosis. In other words, what matters is not what genitals the child has, but instead how the individual self-identifies and expresses that identity.
In our next article, we will explore the medical stages of transition for a transgender individual and consequential legal implications within the school environment, including specific considerations for creating a transgender student response protocol.
Sarah Moore Esq., is a partner at the Cleveland office of Fisher Phillips, a national labor and employment law firm.
Karin Selva M.D., is a board-certified pediatric endocrinologist at Legacy Health Services in Portland, Oregon.