May 13th marked the two-year anniversary of the “Dear Colleague Letter on Transgender Students” (2016) sent by the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) to schools across the United States. The letter summarized the protections Title IX offers to transgender students by prohibiting discrimination based on a student’s gender identity and securing access to appropriate and affirming facilities. A year later, the letter was withdrawn leaving transgender and gender nonconforming (TGNC) youth without adequate protection and support while attending US schools. On this anniversary, let’s talk about the original “Dear Colleague Letter,” the letter that replaced it, and how the application of a child’s rights perspective could enhance the conversation and ultimately protect TGNC youth.
Several explanations of how Title IX should be applied to gender identity were made in the 2016 letter. One section stated that schools may continue to separate facilities based on sex, but must permit transgender students to use facilities that affirm their gender identity. In other words, a child who identifies as a “boy” can use the “boy’s” bathroom irrespective of his birth-assigned gender. This is not only true for restrooms, but also locker rooms, housing, showers, sex-segregated classrooms, and even athletic team membership. Ultimately, the guidelines articulated in the “Dear Colleague Letter on Transgender Students” (2016) set high expectations for the treatment and safety of transgender and gender nonconforming youth in public schools throughout the United States. Unfortunately, the effects were not long lasting.
On February 22, 2017, less than one year after the original letter, another “Dear Colleague Letter” was issued under the Trump Administration withdrawing and rescinding the 2016 guidelines. The letter stated its intent to consider the legality of such a protection before deciding whether gender identity should be included under Title IX. Although TGNC students are still technically protected against bullying, discrimination based on gender identity can be extremely detrimental to a child’s mental and/or physical health.
As a former educator, and individual who has worked with TGNC youth, I considered including a narrative example that demonstrates some of the consequences of discriminating based on gender identity, but decided against it. The bottom line is no one should be discriminated against based on any characteristic, and the fact that TGNC youth are an incredibly vulnerable population speaks to the negative consequences systemic discrimination can have. The United States is the only country in the world that has not ratified the Convention on the Rights of the Child (CRC), however, framing the failure to protect TGNC youth in U.S. schools as a children’s rights violation may help bring much-needed attention to the issue.
According to the CRC, children under the age of eighteen have internationally recognized rights, and Article 2 claims United Nations (UN) member states have the duty to ensure those rights to every child within their jurisdiction irrespective of “race, colour, sex, language religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” By stating “or other status” the Article is open to interpretation and an argument can be made that gender identity should reasonably be included as a protected characteristic (A).
In 2013, the Committee on the Rights of the Child included protection from discrimination based on gender identity in a General Comment. It claimed the protection of gender identity is necessary for a child to enjoy the highest attainable standard of health according to the CRC (Article 24). It may also ensure TGNC youth have access to education and do not unenroll or drop out due to discrimination (Article 28) (B). Another argument can be made that a child’s right to preserve their identity (Article 8) may be inextricably linked to the child’s choice of name and/or pronouns as well as the child’s ability to access gender affirming facilities.
Given that transgender and gender nonconforming youth face high risk of homelessness, substance use, and/or employment discrimination among other things (C), ensuring their access to gender affirming language and facilities within schools may be critical to their mental and physical health. The securement of these rights can begin on a small scale with educators, school administrators, guardians, and other community members who provide direct services.
TGNC youth deserve equitable treatment and access to the same rights as their cisgender peers. We do not need to wait until the next “Dear Colleague Letter,” or ratification of the CRC to treat gender identity like a children’s right. To acknowledge the second anniversary of the original letter, please see the list of actions Gay and Lesbian Alliance Against Defamation (GLAAD) has compiled here. The most important action you can take, however, is self-education.
The following organizations cover everything from terminology to legal protections for transgender and gender nonconforming youth (and adults):
National Center for Transgender Equality: https://transequality.org/
Safe Space Training at Loyola University Chicago: https://luc.edu/diversity/programs/lgbtqia/safespaceworkshops/
Separation and Stigma: Transgender Youth & School Facilities: https://lgbtmap.org/file/transgender-youth-school.pdf
Transgender Law Center: https://transgenderlawcenter.org/equalitymap
Trans Student Educational Resources: http://temp.transstudent.org/subdirectory/
Williams Institute- Transgender Issues: https://williamsinstitute.law.ucla.edu/category/research/transgender-issues/
After the 2017 “Dear Colleague Letter,” Loyola University Chicago issued its own statement confirming its continued support for transgender and gender nonconforming students. According to the statement, students are permitted to access bathrooms and locker rooms consistent with their gender identities and gender identity is protected under the University’s anti-discrimination policy. In addition to these protections, other resources are available to transgender and gender nonconforming students on campus.
Resources for Transgender and Gender Nonconforming Students at Loyola University Chicago:
Advocate Student Group: https://luc.edu/diversity/programs/lgbtqia/lgbtqiastudentgroups/
Gender Nonspecific Restrooms at Loyola University Chicago: https://luc.edu/diversity/programs/lgbtqia/unisexrestroomlocations/
General “Help” Resources at Loyola: https://www.luc.edu/dos/gethelp/
GUESS Student Group: https://www.facebook.com/GUESSLUC/
Loyola’s Name Change Process: https://luc.edu/diversity/programs/lgbtqia/namechangeprocess/
Queer and Trans People of Color (QTPoC) Student Group: https://luc.edu/diversity/programs/lgbtqia/lgbtqiastudentgroups/
Student Diversity and Multicultural Affairs (SDMA): https://luc.edu/diversity/about/contact/
Bucataru, A. (2016). “Using the Convention on the Rights of the Child to protect the rights of transgender children and adolescents: The context of education and transition. Queen Mary Human Rights Review, 3(1), 59-68.
United Nations High Commissioner on Human Rights. (1990). “Convention on the rights of the child.” Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.
United Nations Committee on the Rights of the Child. (2013). “General comment no. 15 on the right of the child to the enjoyment of the highest attainable standard of health (art.24).”
U.S. Department of Education. (2015). “Letter to Emily T. Prince.”
U.S. Department of Justice & U.S. Department of Education. (2016). “Dear colleague letter on transgender students.”
U.S. Department of Justice & U.S. Department of Education. (2017). “Dear colleague letter.”
Wilson, E. C., Garofalo, R., Harris, R. D., Herrick, A., Martinez, M., Martinez, J., Belzer, M., The Transgender Advisory Committee, & Adolescent Medicine Trials Network for HIV/AIDS Interventions. (2009). “Transgender female youth and sex work: HIV risk and a comparison of life factors related to engagement in sex work.” AIDS and Behavior, 13, 902-913.