John Banzhaf: Defending transgender students

The Hatchet recently reported that because a female-born transgender student was allegedly “harassed” by sisters of a sorority and forced to withdraw because he dressed and acted like a man, the Faculty Senate will be asked to “add the words ‘gender or identity expression’ to GW’s Student Code of Conduct nondiscrimination policy.”

There are many problems with this proposal.

First, the proposed amendment might provide little protection in that very situation. GW’s current policies regarding other similar categories – such as sexual orientation – target only official policies and actions by GW officials. For example, individual fraternity members apparently cannot be punished for expressing hostility based upon sexual orientation – provided it didn’t amount to “disorderly conduct.” It also apparently doesn’t prohibit individuals from voting against a pledge based on factors like sexual orientation.

Next, it’s not clear how such an amendment would answer a key concern raised by transgendered students at other universities – restroom use. For example, a person who has male genitals but wears a dress may experience adverse reactions from others while using a men’s restroom.

If the amendment would address this problem by permitting the student to use the women’s restroom, that concern might be eliminated, but some female users might be concerned about an invasion of their privacy. Since the term “gender or identity expression” presumably also applies to transvestites or cross-dressers – including heterosexual men in dresses – that concern might be even greater.

Additionally, if the amendment would permit persons with male genitalia to use a women’s restroom, this might permit males dressed and acting like men to use a women’s restroom, since to grant transgendered males and not other males this privilege arguably discriminates against the latter based upon their “gender or identity expression” as males. This might raise safety as well as privacy concerns for some women who might enter a women’s restroom to find a man there, since they could not complain to campus security as they can now.

Furthermore, protection against discrimination based upon sexual orientation – as well as other traditional factors like race – appears in at least four different places in official University antidiscrimination policies. The Hatchet reports the proposal is to amend only one. Why add “gender or identity expression” to only one document, whereas “sexual orientation” is mentioned in all four, if the same type and level of protection from discrimination is intended?

The Code of Student Conduct – which lists actions for which students can be disciplined – does not prohibit discrimination (whether based on race, sexual orientation, etc.) as a separate punishable offense, but rather only if it motivates “violence,” “disorderly conduct,” etc. So even if “gender or identity expression” is added to the existing categories, it is not clear that “harassment” which falls short of “disorderly conduct” would be prohibited.

The Statement of Student Rights and Responsibilities says “The University will not permit discrimination on grounds of sex, race, color, religion, national origin, disability, sexual orientation or identity, or any other illegal basis in any University-recognized area of student life.” Since discrimination based upon “sexual identity” is already prohibited, why is there a need to add new language to protect against discrimination based upon “gender or identity expression”?

Finally, as noted above, the Student Rights Statement, as well as the University Policy on Equal Opportunity, by their terms prohibit only discrimination which is “illegal” or “unlawful.” Since discrimination against transgendered people is not illegal in Virginia, it is not clear that the proposed amendment would provide protection on GW’s Virginia Campus.

It’s important to address these issues now before votes are taken.

The writer is a professor of public interest law at the Law School.

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