Students, faculty and guest panelists discussed Title IX protections and transgender rights for public school students at UF Levin College of Law Tuesday afternoon.
Alongside The Federalist Society, a conservative and libertarian legal organization, the LGBTQ+ campus organization OUTLaw hosted “Gender Identity in the Classroom” to discuss G.G. v. Gloucester County School Board, a case pending hearing at the United States Supreme Court.
The landmark case made its way to the U.S. Supreme Court after 17-year-old Gavin Grimm, who identifies as male but was born female, was banned from the boys' bathroom at his high schoolGloucester, Virginia after his community raised concerns. Grimm was ultimately forced to use a unisex stall.
Grimm, who is being represented in court by the American Civil Liberties Union, sued his public school board for sex discrimination under Title IX and equal protection laws. The school board said they would not allow Grimm to use the girls’ bathroom because Title IX protections only exist to eradicate discrimination against women, said Denise Brogan-Kator, a panelist at Tuesday’s event.
Brogan-Kator, part of the senior legislative counsel at the Family Equality Council, said although Title IX protections weren’t created with the LGBTQ+ community in mind, they should still apply to situations that discriminate based on gender or gender identity.
According to the NCAA, the Title IX of the Education Amendments Act of 1972 is a federal law stating “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.”
“You are either free from discrimination under Title IX laws or you’re not,” Brogan-Kator said. “The Equal Protection clause of the United States constitution talks about any person. Any person means individual freedom, and if that is violated, then we will sue.”
Brogan-Kator said the upcoming Supreme Court decision will ultimately depend on whether or not the justices believe Grimm is a boy, a topic which can be controversial for some.
If other people don’t want to share a public bathroom with a transgender person, they themselves should use a unisex bathroom instead of resorting to discrimination, Brogan-Kator said.
“If you are uncomfortable being around a trans people, leave,” she said. “Go to a place where you have more privacy.”
In April 2016, Marion County Public Schools disallowed transgender students and faculty to use the bathroom that corresponds to their gender identity.
The school board decision stated that transgender students are only allowed to use a gender neutral bathroom or the bathroom of the gender originally listed on their birth certificate.
Contrary to Brogan-Kator’s beliefs, panelist Ilya Shapiro said he supports school choice, like Marion County’s decision. Shapiro said there are too many outside interests and conflicts --such as sharing locker room showers with transgender students-- for the courts to make a decision.
“It’s not even a constitutional law case,” Shapiro, a senior fellow in constitutional studies at the Cato Institute, said. “Hard cases make bad laws.”
Instead of the Supreme Court making a decision, Shapiro said schools and communities should make independent choices about transgender policies in schools -- and if any student feels uncomfortable with those choices, maybe they should find a different place to learn.
“There ought to be flexibility for local decision makers to figure out what serves the community’s interest,” Shapiro said. “I don't want to impose a one-size-fits-all solution: This is why school choice is so important.”
The third and final event panelist, Dr. Anyaliese Hancock-Smith, contributed to the discussion from a psychological standpoint.
Hancock-Smith, a clinical psychologist at UF Health who works with transgender teenagers, said LGBTQ+ students are twice as likely to commit suicide — and barring students from bathrooms based on gender identity is comparable to separating white and colored water fountains.
“Gender is a social construct,” Hancock-Smith said. “It’s someone’s innate sense of self— it’s who they are.”
On Feb. 22, the Trump Administration revoked two federal guidance letters that aimed to protect transgender students in public schools. The guidance letters, issued by former President Barack Obama during his last two years of office, emphasized the legal obligation of schools to recognize the gender identity of transgender students as opposed to the gender on their birth certificate.
UF law student Benny Menaged said he was discouraged when President Donald Trump removed those guidelines earlier this month, but believes Grimm has a good chance of winning based on recent court decisions regarding transgender rights.
“Transgender people deserve legal protection, and he’s taking away those protections,” the 26-year-old said.
Menaged, the former president of OUTLaw, said he’s looking forward to seeing whether the courts will confirm whether transgender people are including under Title IX.
“We will see in future supreme court cases, including the one next month, if the courts are willing to give the LGBT community any sort of protection from executive orders and other legislative orders that hurt us” he said.