THE JUDICIAL AND GENERATIONAL DISPUTE OVER TRANSGENDER RIGHTS.

• Author: Stern, Mark Joseph

Introduction 160 I. Expanding Definitions of Sex Discrimination 161 II. High School Conversations About Transgender Issues 169 A. Student Awareness of Transgender Individuals and Issues 174 B. Student Allies and School Support for Transgender Youth 176 C. Bathroom Use 178 D. Other Voices 180 Conclusion 182 INTRODUCTION

As transgender and gender-nonconforming people have gained visibility in American society through government, media, and culture, the issue of their civil rights has stirred widespread debate, perhaps most visibly in the context of education. As one high-profile case illustrates, litigation over assertions of transgender rights has produced two very different views of transgender individuals among federal judges. The difference stems from divergent understandings of the primary privacy interests at stake in these settings: those of transgender students or of their classmates. While courts grapple with questions about privacy, equality, and fundamental liberties, (1) high school newspapers across the county show that many in Generation Z (those born after 1995) (2) are quietly rejecting rigid gender identity norms and the male-female gender binary, defining gender classification on their own terms, and offering support for judicial defense of inclusion and human dignity.

Part I of this Article outlines the evolving meaning of sexual discrimination in the Civil Rights Act of 1964, (3) then describes two contrasting judicial views of the liberty interests involved in transgender rights issues. Part II presents our new data set drawn from views expressed by high school students in school newspapers that furnishes evidence of the attitudes and behaviors of Generation Z. This type of content-analysis study has not been conducted before. While its reach is limited, (4) the study does provide a useful starting point for further research. The data display the voices of young people who are rejecting gender stereotypes and revising societal norms of personal autonomy and classifications. The conclusion asserts that even if a more restrictive view of transgender rights prevails in the short term because of currently dominant political forces, Generation Z has already begun to change our understanding of gender in the twenty-first century.

1. EXPANDING DEFINITIONS OF SEX DISCRIMINATION

   Federal courts have long struggled to define precisely what conduct qualifies as sex discrimination. Through Title VII of the Civil Rights Act of 1964, Congress prohibited employers from discriminating "because of... sex" but did not explain what, exactly, this command meant. (5) Congress also outlawed sex discrimination in education, (6) housing, (7) credit, (8) and other contexts. In addition, the Supreme Court concluded that the Equal Protection Clause of the Fourteenth Amendment bars certain forms of sex discrimination. (9) A robust body of federal law now protects individuals against discrimination on the basis of sex in various walks of life. (10)

   Still, the precise meaning of "sex discrimination" itself has proved elusive. A law like Title VII obviously forbids employers from mistreating a female worker simply because she is a woman. But it also does much more than that. The Supreme Court has declared that Title VII was designed "to strike at the entire spectrum of disparate treatment of men and women" in employment. (11) It has interpreted this principle to mean that employers may not force women to make larger contributions to pension plans; (12) sexually harass employees, male or female; (13) or exclude women from certain jobs out of concern for the health of a hypothetical fetus. (14) The Court has also held that an employer violates Title VII when it engages in "sex stereotyping"--i.e., mistreating a worker for failing to comply with gender norms. (15) A manager thus runs afoul of Title VII if he refuses to promote a female employee who is perceived to be too masculine, (16) or a male employee who is perceived to be overly feminine. (17)

   This "sex stereotyping" doctrine, first articulated by the Supreme Court in 1989, has been imported into various bars on sex discrimination, both constitutional and statutory. (18) Lower courts have interpreted the Equal Protection Clause to bar government employers from engaging in sex stereotyping. (19) They have also held that educational institutions violate Title IX by engaging in sex stereotyping. (20) The application of the sex stereotyping doctrine to sex discrimination claims arising under different statutes, as well as the Constitution, is fairly settled. (21)

   The scope of the sex stereotyping doctrine, on the other hand, remains unresolved by the Supreme Court, and thus disputed in the lower courts. Should stereotyping pertain exclusively to an individual's mannerisms? Or to immutable features of her identity as well? (22) In the lower courts, however, at least one consensus seems to be emerging: Discrimination against an individual for being transgender qualifies as unlawful sex stereotyping. (23) Any adverse actions against transgender people that are rooted in this stereotypical understanding of gender qualify as unlawful sex discrimination under broadly accepted sex stereotyping doctrine. As one district court explained, "discrimination based on transgender status" is "essentially the epitome of discrimination based on gender nonconformity." (24) When a school administrator discriminates against a transgender person, she punishes him for failing to conform to stereotypes pertaining to the sex he was assigned at birth. In the administrator's view, the individual should not have changed genders; instead, he should conform to the gender listed on his birth certificate.

   A handful of federal courts have applied this principle to transgender schoolchildren, concluding that when a school forbids transgender students from accessing the bathroom that corresponds to their gender identity, it engages in sex stereotyping. (25) The schools, these courts have held, (26) effectively compel transgender students to conform to the sex assigned to them at birth--a requirement that violates Title IX, the Equal Protection Clause, or both. (27)

   The Obama Administration adopted this rationale in a guidance letter sent by the Department of Education (DOE) Office for Civil Rights (OCR) on January 7, 2015, interpreting Title IX and the regulations implementing its ban on sex discrimination in education. (28) The OCR letter declared that "[w]hen a school elects to separate or treat students differently on the basis of sex... a school generally must treat transgender students consistent with their gender identity." (29)

   This guidance lay at the heart of G.G. v. Gloucester County School Board, (30) which involved the transgender student Gavin Grimm. After Grimm--who was designated a female at birth--requested permission to use the boys' bathroom, the Gloucester County School Board voted to require all students to use the school bathroom that corresponded with the gender indicated on their birth certificates. (31) Grimm, represented by the American Civil Liberties Union, filed suit, alleging violations of both Title IX (as interpreted in the OCR guidance) and the Equal Protection Clause. (32)

   The U.S. District Court for the Eastern District of Virginia ruled against Grimm, (33) but a three-judge panel of the United States Court of Appeals for the Fourth Circuit reversed. (34) Relying upon Auer deference to the DOE's interpretation of its own regulation, (35) the Fourth Circuit agreed that the school board's rule violated Title IX. The court found that 34 C.F.R. [section] 106.33, a DOE rule that allows for sex-segregated facilities under Title IX, (36) is genuinely ambiguous. (37) Moreover, the court determined that the DOE's current interpretation of [section] 106.33 was reasonable. (38) Therefore, the court deferred to that interpretation and ruled in favor of Grimm. (39) Judge Niemeyer dissented, concluding that "Title IX and its implementing regulations authorize schools to separate" bathrooms and similar facilities "on the basis of sex." (40) Niemeyer also stated that Grimm's school must provide "all students with physiological privacy and safety in restrooms and locker rooms," (41) seeming to imply that granting Grimm access to the boys' bathroom would jeopardize this "privacy and safety."

   The school board appealed to the Fourth Circuit en banc, but the full court declined to vacate the panel opinion and rehear the case. Writing in dissent from the denial of the petition for rehearing, Niemeyer elaborated upon his earlier concerns:

   Bodily privacy is historically one of the most basic elements of human dignity and individual freedom. And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom. Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons? And do parents not universally find it offensive to think of having their children's bodies exposed to persons of the opposite biological sex? (42) The panel's decision, Niemeyer continued, denies "all affected persons the dignity and freedom of bodily privacy. Virtually every civilization's norms on this issue stand in protest." (43)

   Over the next eleven months, a series of events altered the course of the G.G. litigation. First, in August, the United States Supreme Court stayed the Fourth Circuit's injunction. (44) Then, in February, the Trump Administration reversed the Obama Administration's guidance regarding transgender bathroom access in federally funded schools. (45) That action removed the basis of the Fourth Circuit's decision, leading the Supreme Court to vacate its ruling and remand the case for further proceedings. (46) In response, the Fourth Circuit then vacated the district court's preliminary injunction. (47)

   Judge Davis, joined by Judge Floyd...