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
or at (612) 822-0127, ext. 230.
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