A dispute unfolding in Texas serves as another important reminder that the federal Constitution and federal civil rights statutes, if properly applied and enforced, protect public school students from anti-transgender discrimination regardless of what state and local laws might provide.
Yesterday, the Southern Poverty Law Center (SPLC) sent a demand letter to the school board in La Feria, Texas, on behalf of a transgender student, Jeydon Loredo, who was denied permission to wear a tuxedo in a yearbook photograph. The district’s superintendent, Rey Villarreal, told Loredo’s mother that the yearbook would include her son’s picture only if he wore traditionally feminine clothing, like a “blouse or drape.”
The SPLC’s letter says the organization will take legal action if the district doesn’t change course.
Why not wear let Jeydon Loredo wear a tux? Why reject his gender identity and instead force him to accept stereotypically feminine clothing? According to the superintendent, allowing Loredo to wear a tuxedo would violate “community standards.” Translation: The community just wouldn’t like it. This is rank discrimination.
A Reminder About Transgender Equality Under Federal Law
The SPLC’s letter (which is also available in Spanish) serves as a helpful reminder that federal civil rights laws protect the equal rights of transgender students regardless of what state or local law might provide.
The First Amendment, for example, protects public school students’ right to express themselves through their choice of clothing, subject to certain exceptions that are not remotely relevant here. Courts have applied the First Amendment to protect LGBT students’ expression (and the LGBT-supportive expression of allies) in a variety of circumstances, including—as the SPLC letter notes—when it comes to a student’s choice of clothing in the yearbook photo or at a school dance.
The Equal Protection Clause also prohibits government actors, including school districts, from discriminating based on sex, except where the discrimination is “substantially related” to achieving “important government objectives.” There are no important objectives here; just vague “community standards.”
Title IX of the federal Education Amendments of 1972 similarly prohibits sex discrimination by schools receiving federal funds.
Do schools violate these sex-discrimination laws when they demand adherence to traditional gender stereotypes? Is discrimination based on gender identity a form of “sex” discrimination? Yes, and yes. Courts and other legal actors (like the federal Department of Justice and Department of Education, and the Equal Employment Opportunity Commission) have increasingly recognized that discrimination based on gender stereotypes or transgender identity is a form of “sex” discrimination prohibited by federal law. As the federal Eleventh Circuit Court of Appeals recognized in a 2011 employment case brought by Lambda Legal, “discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination,” and “[a]n individual cannot be punished because of his or her perceived gender-nonconformity” under the Constitution. The Constitution’s protections “are afforded to everyone,” the court emphasized, and “they cannot be denied to a transgender individual.” (When it comes to Title IX, the law only prohibits sex discrimination if the school receives federal funds. Most schools receive federal support.)
Of course, federal and state anti-discrimination legislation that expressly includes “gender identity” is still crucially important. (Neither Texas nor federal law expressly protects against “gender identity” discrimination in schools.) Without express protections that include “gender identity,” school officials and others may misunderstand the scope of sex-discrimination laws and may feel emboldened, however unlawfully, to disregard the equal rights of transgender people. This may happen even where local policies exist to protect against anti-transgender discrimination and harassment, in part because local policies don’t have the same teeth (e.g., enforcement mechanisms) as state and federal laws, and are often, unfortunately, ignored. Indeed, as the SPLC letter observes, La Feria school district itself has a policy that purportedly prohibits discrimination and harassment based on gender, including gender stereotypes. The school appears to be violating its own policies in this case.
Evidently, La Feria needs to clarify and better enforce its equal-rights policy for transgender students. Congress and the Texas legislature also need to take action to improve and clarify protections against gender-identity discrimination. But students like Jeydon Loredo don’t need to wait for that clarification to demand that their equal rights be respected. Properly applied, federal laws, including the Constitution, already protect public school students, including trans students, from discrimination based on sex.
Other recent posts on transgender issues:
- Transgender Awareness Week and the Transgender Day of Remembrance
- Room for (a Poorly Framed) Debate: A Faulty Premise in the Times’ Recent Discussion of LGBT Issues