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- Title
CONFORMITY OR NONCONFORMITY? DESIGNING LEGAL REMEDIES TO PROTECT TRANSGENDER STUDENTS FROM DISCRIMINATION.
- Authors
CURTIS, AARON J.
- Abstract
In recent years, advocates have made significant strides in extending antidiscrimination protections to elementary and secondary students who identify as lesbian, gay, bisexual, and transgender. However, in this comparatively nascent field of law, there has been little discussion of how to effectively support and protect transgender students. These students often face harassment from their peers, lack of access to appropriate restrooms and locker rooms, and dress codes that prohibit them from wearing clothes consistent with their gender identities. Moreover, the needs of transgender students are often confusing to teachers and administrators, leading school personnel to respond to their transgender pupils in inappropriate and ineffective ways. As such, there is a compelling need for a cohesive framework of remedies that can be used to make schools more inclusive and safe for transgender students. This Article provides concrete recommendations for remedying future cases of gender-identity discrimination in schools. To better comprehend the complexities involved in crafting effective remedies, the Article explores and applies Harvard Law School Dean Martha Minow's theories concerning "the dilemma of difference." Minow points out that decision makers must often determine whether to treat a protected class the same as or differently from the majority group--treating transgender students the same as their peers may at times be insensitive to their unique needs, but treating transgender students differently may draw attention to them and cause them to be further stigmatized by other students. Accordingly, this Article argues that decision makers should adopt a catalog of remedies that is flexible enough to adapt to the diverse range of circumstances that confront transgender young people. To give substance to that catalog, the Article explores a recent settlement agreement involving a transgender student in the Arcadia Unified School District in California. The Article will argue that the framework of remedies implemented in the Arcadia case should be utilized in future cases to protect transgender students from discrimination. Whereas most other cases involving transgender students have focused primarily on enjoining specific acts of discrimination, the Arcadia settlement goes further--it requires changes to district policies, training and education programs, and individualized support teams for transgender students. These remedial mechanisms are likely to provide an effective system for supporting transgender students and protecting them from discrimination moving forward.
- Subjects
CALIFORNIA; TRANSGENDER students; SEX discrimination laws; LEGAL status of LGBTQ+ people; CLAUSES (Law); APPELLATE courts; SCHOOL districts; LEGAL status of transgender people
- Publication
Harvard Journal on Legislation, 2016, Vol 53, Issue 2, p459
- ISSN
0017-808X
- Publication type
Article