Document Type

Article

Publication

Harvard Civil Rights-Civil Liberties Law Review

Year

2022

Abstract

Even in school districts with relatively permissive approaches to defining and embodying gender, the identities of transgender and gender variant students are often governed by complex regulatory protocols. Ensuring that a student is able to live their gender at school can involve input from a host of purported stakeholders including medical providers, mental health professionals, school administrators, the student’s parents, and even the broader community. In essence, trans and gender variant students’ identities are governed by committee, which reduces students’ control over their lives, inhibits self-determination, constricts the scope of permissible gender identities, subjects them to incredible degrees of state surveillance, and amplifies the risk that sensitive information about the students will be disclosed more broadly.

Some of these barriers may have roots in the ways gender has been discursively framed in order to access harm-reducing legal benefits and carve out space for trans identity and survival. For example, persistent linking of transgender identity with medicalized diagnoses, potentially to harness medical care, may lend credence to a regulatory approach where medical providers and administrators, not the student, have predominant control over the child’s identity. Similarly, attempts to essentialize gender identity as an innate mental state in order to assuage concerns about mutability legitimizes the role of mental health professionals in controlling the student’s identity at school.

This Article intervenes in this regulatory landscape in three ways. First, it examines the prevailing discursive and sociolegal ways of framing gender and gender identity through an analysis of transgender history and activism, medical discourse regarding gender and gender identity, mental health discourse, and law reform efforts and advocacy.

Second, it unpacks the many bureaucratic barriers imposed on transgender and gender variant students in schools, tentatively linking those barriers to the discourses of gender identity. Through a detailed analysis of the education policies governing gender identity in each state and each state’s largest school district, the Article documents the substantive requirements for living consistently with one’s gender identity in school (for example, providing medical documentation v. self-identification) and the different stakeholders enshrined in procedurally assessing students’ gender.

Finally, the Article explores whether given extant doctrine endorsing comparatively expansive First Amendment speech rights—even for students—renewed discursive emphasis on “gender expression” could provide students with greater freedom relative to purported “committee” stakeholders. At the very least, an emphasis on the dialectical relationship between social context and gender expression could help schools, courts, and society better understand the non-essentialist (e.g., non-medical) but exploratory and performative components of our gender identities, building societal appreciation for the ways in which our identities—while our own and while material—are nevertheless dynamic—a simultaneously challenging but beautiful concept.

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The supporting data for this article can be found here: https://scholar.law.colorado.edu/research-data/17

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