Late this past week, the Department of Education released some very big news: Trans* students are now protected under Title IX!
Title IX, which was passed into law in 1972, is most well known for it's connection to addressing sex discrimination in intercollegiate sports as well as sexual harassment and sexual violence. However, the law seeks to confront discrimination based on sex in ten key areas of any educational institution that receives federal aid (e.g., financial aid for students, federal funding for the institution, federal grant money). However, it was never clear--at least to me--that Title IX could be used to fight for the legal recourse of students who faced gender-based discrimination.
Now, its important to take a moment now and note that although there are some (e.g., Kate Bornstein, Judith Butler) who suggest that sex and gender are one in the same--Judith Butler (2006) famously wrote in Gender Trouble: Feminism and the Subversion of Identity that "perhaps, this construct called 'sex' is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all" (pp.9-10)--the way sex and gender are understood in the public sphere is as two distinct, yet often overlapping categories of difference.* In other words, although one's sex (e.g., the sex one is assigned at birth) and one's gender (e.g., one's identity and/or expression of masculinity, femininity, androgyny, and/or other configurations of presentation) often overlap, these are seen as two distinct identities. Furthermore, even though they are seen as distinct categories of difference, they certainly overlap and share a close association. For example, Butler outlined the social discourse regarding how one's sex and gender should align, which she referred to as the 'heterosexual matrix.' Essentially, Butler's argument was that the prevailing cultural discourse stipulates that, for example, those born male should present in masculine ways and be attracted to females who present in feminine ways, and vice versa. And, although there are some (e.g., trans* folks) who defy this logic, we are deemed 'culturally unintelligible.' Butler uses the notions of the heterosexual matrix and cultural unintelligibility to go on to proliferate possibilities for how we come to identify and understand gender and, thus, she seeks to, as Spade (2011) stated, increase life chances for those who transgress normative understandings of sex, gender, sexuality, and desire a la the heterosexual matrix.
Now this previous (and incredibly brief) foray into the (basic) underpinnings of queer theory are important because, although there are some (e.g., Butler) who suggest 'sex' and gender are one in the same, there has been some confusion about how this plays out socially, politically, and legally. For example, given the realities of genderism, it has been unclear if one could use a law like Title IX, which uses the language of sex, to address the negative effects of gender-based discrimination (if they are one in the same, one might think this could happen, but has not previously been the case). In other words, because trans* lives have been so incredibly unintelligible, and there is a strong social narrative of trans* people being deceptive, or not really who we say we are (e.g., we are 'born into the wrong body' or are not 'real' men/women), many--including myself--were unclear if we could use laws meant to protect individuals based on sex for protection under the law based on the negative effects of one's non-compliance with social gender expectations and norms. Although I had my hopes it could be used for this purpose, I held a healthy skepticism, as the legal field has never really been a positive place of support for trans* folks, especially trans* women of color (if you need some evidence to back up this last point, please see how the stop and frisk policy in NYC invariably lead to the policing of trans* women of color as well as the recent case of Monica Jones in Phoenix, AZ).
Well, based on the recent DOE announcement, it seems like we can. So, given this recent announcement, it seems important to take some time to think about what this could do (as well as not do) for trans* students throughout all educational institutions that receive any federal funding.
What this could do is open up the potential of trans* students and their families seeking legal recourse for the discrimination, harassment, and violence they face in educational settings. These legal proceedings will likely be long, and could be tricky, as it is often not easy to 'prove' (in a beyond-a-shadow-of-a-doubt legalese sense) that discrimination has occurred. However, there is an avenue for testing the law now, so it will be interesting to see what comes from this DOE announcement. Furthermore, if some educational institutions are found guilty of not providing safe spaces for trans* students, I will be curious to see how this translates to environmental changes. Which brings me to what this announcement may not do...
As Spade (2011) has eloquently argued, the instituting of trans*-inclusive policies does not always equate to the creation of trans*-inclusive environments. For example, just because gender identity and expression are included in an educational institution's non-discrimination policy does not mean that institution will be free from genderism. In fact, these policies may do some potential harm in that they provide the veneer of inclusion, but do not change the ethos of inclusion at the institution. Thus, to suggest that the DOE announcement is, in and of itself, a boon for trans* students and their families is a bit of a red herring. Yes, it is an important step, both in its symbolism and it's opening up a legal path to redress the effects of genderism on a individual level. However, I am not convinced that these sorts of announcements have the types of sweeping institutional or cultural levels of change we may want, desire, or hope to see. For example, if a student brings a discrimination suit against an institution and wins, that institution may easily create some accommodationist policies (e.g., creating an all-gender wing in a residence hall, designating a couple of bathrooms on campus as all-gender restrooms). To be clear, these are important and necessary steps. However, if all that is done is accommodationist in nature, the opportunity to change the ethos of an institution and those who work at it is lost. In the previous example, to just create an all-gender wing in a residence hall, and seeing this as an end to which all should aspire, forecloses the needed conversation regarding how designating one floor, wing, or building as all-gender provides a buffer for the enactment of genderism in all other residential spaces. So, while individuals may be accommodated, and people may get some basic (and very much needed) necessities (e.g., comfortable places to live, use the restroom, meet other people, develop a sense of belonging), educational institutions will still operate in accordance to genderist discourses.
Confronting and resisting genderist discourses in educational spaces, and creating liberatory cultures and climates, is not as simple as enacting policy changes. Yes, these policies are dreadfully needed and long overdue. I am not suggesting otherwise. However, I think it is important to recognize that the DOE announcement is both important/needed/about time and that it is not a panacea. Thus, it is important to recognize--to use Spade's (2011) language--the limits of the law as we continue to work toward equity and change. What might that look like? I would suggest we continue to think about seeking justice through both the legal sphere and others. I would suggest we continue to build coalitions with other marginalized populations and our allies, seeking those places and spaces of overlap where we can work together in the recognition that our oppression is, in many ways, connected. It may not be the same--in fact, it rarely has the same historical, legal, political, or social expressions--but it is all connected and, thus, our best work can and should be done in coalition with each other.
To be honest, I am not sure exactly what that would look, feel, or sound like. I am not sure what a radically coalitional approach to activism (in education and/or any other sphere) may be like. I am still trying to imagine what forms this could take, especially in the field of higher education. However, I am confident that we have not yet allowed ourselves to fully embrace the notion that it is, indeed, possible and/or desirable to work toward that goal. Some organizations (e.g., the Sylvia Rivera Law Project) have worked to create and highlight models for what coalitional and collective movement building could look like, and I for one am excited at these prospects. I am also deeply interested in using these strategies and models as a way to resist the neoliberal logic that pushes an individualistic agenda dictating that marginalized populations should look out for ourselves above all else. This work can happen, and we can do it together.
So again, chapeau to the DOE. Thank you for your announcement. However, let's not think our work is done. We have a long way yet to go, so let's think about how we can do it together!
*The theoretical underpinnings and lived effects of thinking of sex as always already gender is an important (and fertile) topic to be mined. However, it needs more space and attention than I am able to give it in this post. So, while I will likely address this issue at a later time, I view these two categories of difference (i.e., sex and gender) as distinct yet overlapping for the remainder of this blogpost given that this is often how they are viewed and understood currently in the public sphere.
This blog is a space where I engage with ideas, concepts, and research that seeks to increase life chances for trans* people.