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Gender Identity: Implications for Students

What is "transgender"?

"Transgender" is an umbrella term usually used to describe a person who transcends the typical male-female gender roles in some significant way. Some transgender people "simply" present themselves, through clothing and other aspects of their appearance, as a member of the other sex. Others seek to change their bodies, for instance through the use of hormones or through surgery, to more closely resemble the body of a member of the other sex. For many transgender people, there is a profound and persistent identification as a member of the other sex. A person might become aware of having a gender identity that is not typical for a member of their sex at any age. Modern research suggests that a person's gender identity is linked to physical characteristics of a person's brain, meaning that gender identity may not be a "matter of choice" or amenable to change.

Minnesota Human Rights Act

The Minnesota Human Rights Act (MHRA) prohibits discrimination in a number of areas, including education (see Minn. Stat. § 363A.13). The Act was amended in 1993 to prohibit discrimination on the basis of "sexual orientation," which was defined by the Legislature as including those who "have or are perceived as having a self-image or identity not traditionally associated with their biological maleness or femaleness." (See Minn. Stat. § 363A. 03, subd. 44.) Through the use of this terminology, MHRA prohibits discrimination in education against transgender students, i.e., students who "have a self-image or identity not traditionally associated with their biological maleness or femaleness." This would include differential treatment of students who do not fit the gender role usually assigned to persons with similar anatomy.

Title IX

Federal law also may protect transgender students. Title IX prohibits discrimination in federally-funded public schools on the basis of "sex." (See 20 USC § 1681.) The term "sex" in federal law has increasingly been interpreted to encompass "gender roles" – in other words, enforcing gender roles may constitute sex discrimination. ((See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Title VII – employment); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (Gender Motivated Violence Act); Montgomery v. Indep. Sch. Dist. No. 709 [Duluth, MN], Civ. No. 99-393 (D. Minn. Aug. 23, 2000) (declining to dismiss Title IX claims by student alleging discrimination on basis of failure to conform to stereotyped gender roles)). School districts which discriminate on the basis of a student's failure or refusal to adhere to gender role stereotypes, or which look the other way when such a student is harassed by others, face the potential of liability under federal law.

Potential Constitutional Issues

At least one court has ruled that a minor student's right to express her gender in a manner not consistent with her genital anatomy was conduct protected by the state constitution's "free speech" guarantees. (See Doe v. Yunits, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000)). A student in Minnesota could conceivably raise a "free expression" claim against a public school attempting to punish or negatively treat their untraditional gender expression. (See Minn. Const. Art. 1, § 3; U.S. Const. Amend. 1).

For more information, contact the OutFront Minnesota Legal Program at legal@outfront.org or at (612) 822-0127, ext. 7663.