Title IX covers trans and “gender nonconforming” people

Last April, the Office for Civil Rights of the US Department of Education issued a guidance stating explicitly that: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”

I’m somehow just learning about this now, and I have several thoughts:

First, it’s big, and it was a great development, certainly for the trans activists who no doubt led the push for this explicit guidance. The full significance will probably only gradually become apparent.

Second, however, it’s a remarkable development not only for trans people but for everyone. The inclusion of protection for “nonconformity” with stereotypical notions of masculinity and femininity potentially affects everyone in an educational community. That’s why I’m a bit bothered by how the guidance was narrowly framed in many reports online as a victory for or recognition of trans people. The way protection against discrimination based on “gender nonconformity” was presented, moreover, for the most part tended to reify the very stereotypical categories from which the policy is meant to protect people. It was almost as though conformity-nonconformity was being portrayed as a spectrum, with trans people at the extreme end of nonconformity. In this way, it was suggested that “nonconforming” people were a subset of the trans spectrum, further reinforcing the idea that the guidance applied essentially to trans people.

Not only do I not believe this is an accurate view of identity and presentation – “conformity” with stereotypical gendered behavior has no necessary or inherent relation to being trans, and vice versa - but it’s inaccurate insofar as the text of the guidance makes clear that any discrimination related to stereotypes, including against characteristics or behavior which are seen as conforming, is prohibited:

It also prohibits gender‐based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex‐stereotyping. Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. (pp. 7-8)

Of note, the guidance has this to say about discrimination based on sexual orientation:

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also…be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti‐LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment. (p. 8)

I’m surprised and disappointed that the coverage of the guidance by advocacy and civil rights organizations didn’t emphasize that the guidance is a victory for everyone and that it challenged the enforcement of stereotypes rather than reinforcing them. If nothing else, this could have been helpful in countering anti-trans propaganda, which often suggests that laws and policies protecting trans people work against, for example, feminist challenges to these stereotypes.

Third, I don’t care for the language of “conforming” and “nonconforming.” It suggests that the policy protects types of people rather than types of behavior or traits or interests, which minimizes the reality that people can’t be sorted in this way. While some characteristics are relatively stable, we’re all at different times behaving in ways that can be seen as either congruent or incompatible with gender stereotypes. Phyllis Schlafly’s actions, for example, have been in many ways gender “nonconforming” (and, like her gender “conforming” actions, would all be protected from discrimination following this guideline). It’s important to keep the focus on the characteristics and behaviors themselves.

It also tends to conceive of all characteristics or behaviors as inherently gendered. A kid plays video games, is a vegan, enjoys crafts, wears their hair long or short, wears a skirt, plays hockey, is sensitive and nurturing, joins the drama club or the debate team,… - none of this is by any means necessarily an element of gender presentation, conforming or nonconforming. It could be, subjectively, for some individuals, but it could also be kids just living their lives as who they are and doing what they enjoy. Just because others want to see it as gendered and use it as a basis for policing and discrimination, it doesn’t follow that the choices and behaviors have a gendered meaning for the person involved. The choices and behaviors themselves are generic. The DOE guidance generally seems good and neutral in its language – e.g., “exhibiting what is perceived as a stereotypical characteristic for their sex” – but this subtlety often tends to get lost in the larger conversation, especially given the suggestiveness of the idea of “nonconformity.”

The notion of “nonconforming” is also misleading in that it implies that dress or behavior which fits with existing stereotypes is “conforming.” In our culture, nonconformity is valued, which can lead to those behaviors, interests, or traits regarded as stereotypical, and the people exhibiting them, being viewed with disdain. (Since we live in a patriarchal culture with a feminist opposition, being seen as conforming to “feminine” stereotypes can be especially scorned.)

As noted above, people make choices for a number of reasons, and not all choices viewed as “nonconforming” are rebellious (in fact, some might be a means of conforming to a different reference group). Of those that are rebellious, the rebellion can have various meanings (for example, it can be a refusal to act in accordance with any rules, or with gender roles specifically, or a specific choice to live according to your own interests, needs, and desires, and so on). And, as I’ve argued, without knowing another person’s subjective reasons for acting in ways that appear to “conform” to stereotypes, we can’t know that they’re actually conforming rather than living freely as themselves. And the idea that simply acting in ways that have been stereotyped itself contributes to oppression serves to delegitimize especially traits and behaviors associated with “femininity”: caring, emotional sensitivity, etc. Instead of concerning ourselves with questions of “conformity,” we should be thinking about choices and actions in terms of our values.