Individuals within a society develop norms or social expectations of what is believed to be normal, which is then interpreted as acceptable. These norms inform people’s perceptions and reactions to how others, as well as themselves, behave. When the behavior or self-presentation of an individual does not conform to these societal beliefs, the individual is likely to experience a low level of acceptance. Frequently, an individual who is gender-nonconforming faces being excluded as well as negative and sometimes detrimental experiences of harassment and discrimination. People who do not conform to socially normed gender identities that are framed by traditional sex roles, in alignment with their sex or birth-given anatomy, are seen as resisting the socially created expectations of gender and sex, and they are given the label of transgender.
While sex has been a protected class in employment under Title VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972 was written specifically for the protections of individuals based on their sex to be free of discriminatory actions within educational programs receiving the benefit of federal financial aid. Gender identity has been recognized as a separate protected class by several states; however, these inclusions are not as helpful given the narrow parameters in some states.
There are some legal cases that inform the possible inferences that may be made under Title IX, providing for the application of these protections to non-gender conforming students as well. Notably, decisions from the United States Supreme Court are considered law of the land, and decisions involving Title IX are often informed by prior decisions involving Title VII.
In the case of Price Waterhouse v. Hopkins (1989), the United States Supreme Court heard the matter of an employee who complained that she was denied a partnership opportunity within the business due to her sex under Title VII protections. The Court’s decision included a resulting concept referred to as the sex-stereotyping principle, which provided for the plaintiff to develop her complaint by explaining how she did not conform to stereotypical behaviors as a woman. Consequently, the Court found that her lack of gender conformity behaviors resulted in discrimination based on sex when she was not offered the partnership.
In the case of Davis v. Monroe County Board of Education (1999), the United States Supreme Court heard the matter of student-to-student harassment that was directed at the complainant based on her sex under Title IX protections. The Court decided that the harassment the student complainant experienced was severe enough to limit her from the educational opportunity. The Court created clear standards in evaluating the harassment and application of Title IX, specifically how the behavior limited the student’s entitled equal educational opportunity.
There are additional court cases in United States District Courts in California (Ray v. Antioch Unified School District, 2000), in Minnesota (Montgomery v. Independent School District Number 709, 2000), and in Kansas (Theno v. Tonganoxie Unified School District Number 464, 2005) that have been heard as matters of sex-based harassment as protected under Title IX, referencing the prior decisions in Price Waterhouse v. Hopkins as well as Davis v. Monroe County Board of Education in evaluating the facts. They include instances of verbal and physical behaviors towards individuals of the same sex that are based on the complainants’ sex, sex stereotypes, and the complainants’ deprivation of equitable educational opportunities. Both the Ray and Theno cases were decided with findings for the plaintiffs
The newest information to the topic of defining sex and gender as protected classes is the joint statement issued on May 13, 2016, from the United States Departments of Education and Justice, regarding the civil rights of transgender, or gender non-conforming, students. In the guidance, clear expectations were set for ensuring transgender students’ civil right protections as covered by Title IX. This guidance explicitly states relevant gender and sex related terminology and compliance matters in providing an “inclusive, supportive, safe, and nondiscriminatory [community] for all students.” Given the newness and already stated opposition, there may be some states and educational institutions that delay in recognizing the legitimacy of transgender students.
It is important for all members of society to understand those around them. How does the society grow and allow norms to change as individuals in the society may no longer conform to previous narrow beliefs? How do educational institutions create the spaces for gender non-conforming students, as well as faculty and staff, to feel not only welcome but safe to participate in all of the educational programs?
This post was co-authored by Ms. Ashley Atteberry and Dr. David Nguyen. Ms. Atteberry is Director of the Office of Student Conduct and Resolution at the Minnesota State University - Moorhead. Ms. Atteberry is also a Ph.D. student in Higher Education at the University of North Dakota.