From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse

Abstract

In recent years, transgender adults in the entertainment world have capitalized on their public platform to advocate for and increase awareness about issues affecting the transgender community. Even with spokespeople such as Chaz Bono (son of legendary American entertainers Sonny and Cher) in the spotlight, there is a noticeable absence of a voice for transgender youth, a particularly vulnerable segment of this misunderstood population. But, children, often as young as four or five, are more commonly proclaiming to be “born in the wrong body.” In addition to being subject to intolerable bullying and harassment by their peers, transgender youth face an uphill battle in public schools because educators are unprepared to handle the logistics of their transition process, which includes a prolonged period of living in all aspects as the opposite sex. First, this Article acknowledges the quagmire plaguing public schools that serve a transgender population. When and to what extent should schools, standing in loco parentis, intervene when children in their care are confronted with gender identity issues? What responsibilities do schools have to protect and educate both those children struggling with gender identity issues and those children who are impacted by their peers’ non-conforming gender expression? Finally, and most significantly, how should schools address the daily logistics affecting transgender students, including bathroom and locker room designation, which have historically been determined by a student’s biological sex? Second, this Article analyzes the current legal landscape governing issues affecting transgender youth in public K-12 schools. Although there is a beginning recognition in the law of rights for sexual choices and identities that are non-traditional, the current law is insufficient in dealing with the practical and logistical concerns that schools serving transgender students face on a daily basis. Next, the Article advances a novel argument that demands more robust protections for a transgender student’s gender expression. It submits that a transgender student’s expressive conduct (including her desire to use the restroom that corresponds with her gender identity) is speech that falls within the protective umbrella of the First Amendment. Since a transgender student’s outward expression of gender conveys an important message to others about that student’s identity, and because fitting in and being accepted are so vital to a transgender youth’s psychological well-being, a transgender student’s expressive conduct is undoubtedly “speech” as defined by long-standing First Amendment jurisprudence. Lastly, the Article cautions that schools must not yield to the impermissible “heckler’s veto” by silencing a transgender student’s peaceful speech simply because that speech is unpopular. Instead, by modeling inclusiveness and awareness for students’ differences, school officials are in a unique position to affect a sea change in the negative attitudes held toward transgender youth.