Civil Rights Law in the Age of Transgender Youth. Part I: Sexual Harassment

Introduction
This blog will examine issues arising from the federal lawsuit  Privacy Matters v. U. S. Department of Education.  This suit concerns a Minnesota junior high/high school in which a male-bodied student (as defined by sex at birth) began identifying as female gender and was allowed to use bathrooms and locker rooms and play on sports teams formerly used only by those of the female sex (as defined at birth).  In this series of blogs,  I am starting from court documents and other public statements by the contending parties, to try to understand the issues through a legal lens.

One of the issues fought out in the legal documents is the correct language that will be used to refer to a person born with a male body, but now identifying as female.  I have chosen to use male-bodied and female-bodied to refer to sex as observed at birth and gender identity to refer to a person's current identification, if it is different from sex at birth.  I will use his/her to refer to Student X, the transgender student in this case.  A fascinating aspect of this case is the way competing ideologies are fought out, both overtly and covertly, in the use of language.

Privacy Matters v. U. S. Department of Education grapples with many of the topics in contention with the rise of the transgender rights movement.    Some of the wide range of issues that must be addressed if this case goes to trial are  1. the definition of male and female, 2. the presence of male-bodied persons in formerly female-bodied only spaces, 3. male-bodied persons competing against female bodied people in sports, 4. the definition, diagnosis and treatment of transgenderism, 5. the right to privacy 6. freedom of religion, 7. the rights asserted by transgender people as weighed against the rights of others 8. the status of Title IX, and 9. competing cultural and ideological positions.  These issues are, of course, intertwined, but I will try to highlight each one in order to illuminate the whole.

In this first blog, I discuss sexual harassment, an issue arising under Title IX, that first drew me to this case.   Sexual harassment is a focus in the initial complaint .  As alleged on page 54, the school district policy allowing male bodied persons in female bathrooms and locker rooms "Creates a Sexually Harassing Hostile Environment." The complaint states in part:  "322. Sexual harassment constitutes discrimination under Title IX when it is so severe, pervasive and objectively offensive that it deprives a plaintiff of access to the educational opportunities and benefits provided by his or her school. 323. Typically, a school district is liable for its indifference to known harassment that occurs under its control. 324. Moreover when a district policy creates the sexual harassment, the school district is directly liable for intentional misconduct. 325. The Policy violates Title IX because it mandates an environment in which, every time a Girl Plaintiff uses private facilities be it to change for mandatory PE class, prepare for extracurricular athletics, or attend to human personal needs in a restroom she must use private facilities that are open to and used by a male student under the District’s authorization. 326. This situation on its face creates a sexually harassing hostile environment that violates Title IX. 327. The Policy as applied to Girl Plaintiffs meets every element for a Title IX hostile environment claim."

.

Allegations
The following are alleged in the Complaint:

Student X dances to loud music with sexually explicit lyrics in

the locker room while “twerking,” “grinding,” and lifting up his

skirt to reveal his underwear.

Student X changes his clothing by girls who try to seek additional

privacy, both Girl Plaintiff A and Girl Plaintiff D started using a secondary girls’ locker room to seek additional privacy but both Girl Plaintiffs report that Student X came in and used the secondary locker room while they were in their underwear.

Girl Plaintiff A also reports that Student X removed his pants near

her, while she was changing and in her underwear. (P. 12-13).

Allegations are made later in the initial Complaint with regard to individual girl plaintiffs:

[Girl Plaintiff] also tried changing on the opposite side of the room, but

Student X started moving throughout the locker room to change, dance, or

sit, and he would make loud rude comments to other girls about Girl Plaintiff

A and other girls who did not want to change near him.

Student X would dance in a sexually explicit manner “twerking,” “grinding” or dancing like he was on a “stripper pole” to songs with explicit lyrics, including “Milkshake” by Kelis.

On at least one occasion, Girl Plaintiff A saw Student X lift his

dress to reveal his underwear while “grinding” to the music. (p. 30)

Both when inside the locker room and while outside in the gym,

Student X asked Girl Plaintiff F and other girls about their bra sizes

.

Student X also repeatedly asked Girl Plaintiff F to “trade body parts” with him.

These questions and comments made Girl Plaintiff F very uncomfortable because of the close attention Student X paid to the private areas of her body. (p. 38)

The initial complaint was not answered.  Instead there was a flurry of filings to get a preliminary injunction on the policy (which I will discuss in another blog entry) and a flurry of motions from the parent and Student X to intervene and become a party to the suit which previously was being defended by the Department of Education.

Is this kind of behavior--twerking (defined as dancing to popular music in a sexually provocative manner involving thrusting hip movements and a low, squatting stance). grinding (defined as dancing in an erotically suggestive way, often while in contact with one's partner), playing loud, sexually explicit music, and following and commenting on the girls who are trying to avoid this student sexual harassment?  To get at this question, we need to look at the definition of sexual harassment, school policies and actions, and prior legal decisions. 

Policies
—U.S. Department of Education Office for Civil Rights (OCR) is the U. S. government entity charged with enforcing Title IX.  Here is their definition of sexual harassment:

Sexual harassment is unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Thus, sexual harassment prohibited by Title IX can include conduct such as touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Web sites of a sexual nature.”

Legal Background

In Davis v. Monroe County Board of Education, a fifth grade girl complained of eight incidents of harassment by a male classmate,  the U.S. Supreme Court determined that four factors are required for a finding of a Title IX violation: (1) school officials must have actual knowledge; (2) officials with the authority to take remedial action instead show “deliberate indifference,” which makes students vulnerable to harassment; (3) the harassment must have been severe, pervasive, and objectively offensive; and (4) the harassment must have had the effect of denying the victim’s participation in educational programs or activities.  The ACLU filed an amicus brief in support of the plaintiff.  The ACLU counted this case as a win for them when the Supreme Court upheld the ruling against the school board.

In other contexts, women have won cases of sexual harassment for being subjected to explicit sexual comments and sexual music (Reeves v. C. H. Robinson Worldwide Inc.).  An important component of this case was determining if these acts were specifically aimed at the plaintiff.  For instance, just playing a radio station with offensive sexual content in a cubicle is not enough to constitute sexual harassment, the plaintiff must show that it was done specifically to harass.   Twerking has been considered sexual harassment and there have been some arrests.  It does not matter whether the accused is considered male or female as demonstrated by  EEOC v ABC Phones, which involved same sex harassment (and was settled out of court).

School Response

When student X announced his/her transgender status, the school initially made arrangements for Student X to use an alternative private facilities.   Initially, the student was satisfied with these arrangements, stating on his/her YouTube channel " I cannot complain...".  (p. 21)  Then the student began agitating for access to the girls' bathrooms and locker rooms.  Student X started using these facilities without permission and some of the girls were shocked and distressed to see a male-bodied person in their locker rooms.  Later on, in response to the Obama Administration's directives changing the meaning of "sex" in Title IX to "gender identity", the school district feared that it could lose all federal funding if it maintained sex segregated bathrooms and locker rooms.  The OCR had been aggressively enforcing this policy in other school districts around the country.  Student X was then told he could use all the female facilities.

As noted in the Complaint: 107. Under the District Policy, any student in any District school, pre-school through 12th grade, has unrestricted access to private facilities based on the students’ professed gender identity. 108. A student need not provide the District any medical or psychological confirmation of a diagnosis of gender dysphoria. 109. This Policy authorizes males to enter female-specific private facilities and vice versa for students aged three to eighteen (P. 23).

Complaints were made by both girl students and parents about the harassment, but the school did not reprimand the student.  Student X was allowed to use all facilities freely and the activities that the girls found harassing continued.  Some of the girls decided not to return to school, though they had previously thrived there. Others decided not to play sports they had previously enjoyed, some avoided using restrooms for the entire school day.  The Complaint alleges that these are all negative effects on the education of these girls of the harassment and the new policy allowing male bodied persons to use female facilities at will.

Title IX
Title IX is administered by the OCR, Office of Civil Rights, of the U. S. Government.  The definition they provide is:  No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

It would have been possible for the Plaintiffs to bring only sexual harassment charges against Student X.   The evidence presented thus far is certainly consistent with sexual harassment and the inaction of the school to prevent further harassing incidents as well as evidence that Student X was specifically targeting particular girls suggests that this is a case that could make it to trial.  However, both the Plaintiffs (represented by the conservative, religious Alliance Defending Freedom) and and Defendants (represented by the ACLU) are after bigger fish, particularly the definition of sex in Title IX.   It is this intertwining of the sexual harassment charges with the issue of how sex is defined under Title IX that makes this a more important case, but also, perhaps, prevented an easier solution that would permit all these students to get the most out of their high school educations.

An ACLU lawyer, Alexandra Brodsky wrote an opinion piece in the New York Times in October, 2016.  She characterized the case this way: "the complaint reads, heartbreakingly, as the story of a transgender girl acting like any other girl — dancing in the locker room, expressing insecurities about her body — in the face of rejection by her peers."  A Memorandum filed by the mother and Student X, after they were granted the right to intervene and become parties to the suit, says much the same thing:  "A small group of parents, acting through an organization they have named “Privacy Matters,” have now publicly singled Jane out from the rest of the team and used misleading innuendo and salacious phrasing to file a Complaint depicting the ordinary behavior of a teenage girl as threatening or scandalous just because she is transgender. The parents seek to take away her right to be an ordinary high school girl, marginalizing and segregating her from her classmates and teammates."  (p. 2)  Defendants seek to normalize the behaviors complained of, implying that all teenage girls act this way.  However, nowhere were these behaviors stated to be that of any of the other girls in the locker room.  It is not asserted that many other girls twerked to sexually explicit music in the locker room or engaged in the other behaviors enumerated in the Complaint and that only the male-bodied Student X was singled out as being harassing.  The ACLU and the Intervenors normalize the allegedly harassing behaviors in order to characterize the case as one of transgender discrimination under the new definition of sex promulgated by the Obama administration.

In February 2017, the Trump administration withdrew the Obama administration's directive changing the definition of "sex" to "gender identity" in Title IX.  This means that schools cannot now be threatened with withdrawal of federal funding, but it certainly does not end the fight. Many smaller government entities throughout the country have instituted this definition and incidents similar to this case are hotly contested in many schools.

Next blog:  The issue of privacy.  Does the "right to privacy" apply to junior high and high school students who do not want to use bathroom and changing facilities in the presence of people with sexual organs of the opposite sex?

Update:  Privacy Matters withdrew the suit voluntarily as the Trump administration withdrew the Obama era directive mandating that "sex" be changed to "gender identity" in Title IX and the school made accommodations to protect the privacy of the girls.  Privacy Matters retained the right to refile the suit.

The author is a scientist.  She has a child who identifies as transgender.  She knows that the law is an imperfect instrument and that judges are influenced by their own prejudices and ideologies.  Nevertheless, the law gives us an important venue for presenting facts, asking questions, and making decisions that can illuminate important social issues.

Civil Rights in the Age of Transgender Youth is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.