#the gender nonconforming people for whom not conforming extends to not using those pronouns

[mythicalcoolkid]

"Noooo what if this person is actually cis and only using they/them for clout???" CIS PEOPLE ARE ALSO ALLOWED TO USE THEY/THEM

[newlyy]

I wanted to talk about the Supreme Court’s holding/reasoning in Bostock v. Clayton County, Georgia, and how it relates to both the Biden Administration’s executive order and the Equality Act. This is mainly to serve as a reference for me, but others might find it helpful.

For background, the Bostock opinion is three consolidated cases that came before the SC, two in which gay men were fired after their employers learned of their sexuality, and one in which a trans-identified male was fired after telling his employer he intended to begin living as a woman. The focus is primarily on statutory interpretation, specifically whether Title VII of the Civil Rights Act of 1964’s prohibition on discrimination on the basis of sex also prohibits discrimination on the basis of sexuality and gender identity. The Court held that it did: “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII...An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

It provides a further illustration of its reasoning: “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions that it tolerates in his female colleague...Or take an employer who fires a transgender person who was identified as male at birth but who now identifies as female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified a male at birth for traits or actions that it tolerates in an employee identified as female at birth.” 

The illustration is important. It makes it clear that although the Court is using the term “gender identity” (presumably because this is what the plaintiff used), what it seems to actually be protecting is gender nonconformity. It is unlawful under Title VII, according to the Court’s reasoning, to penalize a male employee for exhibiting “traits or actions” tolerated in a female employee, and vice versa (we can assume what those traits or actions would be: going by a female name, using female pronouns, presenting a stereotypically feminine appearance/mannerism/interest, maybe even just verbally stating that you identify as a woman). But note specifically what the Court does NOT conclude: that transwomen are women or female. In fact, it does the opposite. Under the Court’s reasoning, protection of trans-identified men under Title VII hinges on them being biologically male, and as a result, treated differently from similarly situated female people.

Contrast this with the language of the Equality Act, where sex is redefined to include gender identity, or in other words, where male people can self-identify as being legally female:

“Gender identity” in the Act, is defined as including both an adherence to the gender roles (“appearance, mannerisms, or other gender/related characteristics”) of the opposite sex, as well as just having (read: claiming) an ambiguous “gender-related identity.” Neither “gender” nor “identity” is defined separately in the Act. 

To summarize, the Court in Bostock seemingly defined gender identity as gender nonconformity, while also acknowledging that transgender individuals are still their biological sex. The combination of these two things affords them protection under Title VII’s prohibition on sex discrimination in employment. In contrast, the Equality Act redefines “female” to include male people, not only on the basis of gender nonconformity, but effectively on the basis of self-identification (i.e. “gender-related identity”).

It may not seem like it with how I’m organizing this information, but the Equality Act (March 2019) was introduced BEFORE the Bostock decision (Oct 2019). My argument isn’t that the Equality Act misinterpreted Bostock; my argument is that the Bostock decision doesn’t justify the language of the Equality Act, as some trans activists like to argue in support of the Act because, notably, the Equality Act has not yet passed. In his dissent in Bostock, Justice Alito acknowledges this and argues that the Majority in Bostock is attempting to circumvent the Equality Act’s stalled legislative process by going through the courts instead (not a new accusation by conservative justices against liberal): “Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity”...but the bill has stalled in the Senate...Usurping the constitutional authority of the other branches, the Court has essentially taken H.R.5′s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.” 

Second thing to note are the limitations placed on the Bostock opinion by the Court itself: “The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudice any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has...discriminated against that individual ‘because of such individual’s sex.’”

The Court explicitly states that its decision (that under Title VII, discrimination on the basis of sex includes discrimination on the basis of gender identity) applies only in the context of employment discrimination, not “bathrooms, locker rooms, or anything else of the kind.”

Compare this to the reach of both Biden’s executive order and the Equality Act. Biden’s order, referencing Bostock as precedent:

The Equality Act:

Again, the Bostock decision is limited to employment discrimination under the Civil Rights Act of 1964. Biden’s executive order extends beyond the Civil Rights Act to “any statute or regulation that prohibits sex discrimination” and, in his policy statement, implies it will be used to enforce a self-identification policy for bathrooms, locker rooms, and sports. Biden doesn’t need Bostock to agree with him to do what he’s doing, he has the authority on his own, but he seems to be presenting it as a justification for his actions, which it isn’t. It’s also not a defense of the Equality Act, for similar reasons. Bostock says nothing of bathrooms or locker rooms; the Equality Act explicitly legislates a policy of self-identification for both (its one of the only times--if not THE only time--that the Act adds in a specific provision as opposed to just adding “(including sexual orientation and gender identity)” after “sex” every time it shows up in the Civil Rights Act).

TL;DR Bostock’s application is very limited and the Supreme Court based it’s reasoning in the case on the reality of sex, i.e. that trans people are gender non conforming members of their birth sex. It doesn’t argue that trans people are the sex they identify as and it doesn’t, on its own, require that trans people be allowed to use the facilities of the sex they identify as (though it does set a precedent and it may just be a matter of getting a relevant case before the Supreme Court to reach that conclusion). It doesn’t provide a convincing argument in support of either Biden’s executive order or the Equality Act; it definitely doesn’t make either redundant. Don’t let trans activists misrepresent its holding to you.

[teachanarchy]

When Eli Sommer came across the term “transgender” in a Tumblr post in high school, everything clicked. “Oh,” he thought. “That’s me.” Attending a Georgia high school, struggling with anxiety and depression, Eli tried to communicate with his parents who were forcing gender conformity and insisting he was a girl. It wasn’t until his psychologist, who is himself transgender, recommended The Transgender Child as a resource that his parents realized what Eli needed to thrive.

The family met with his homeroom teacher, who quickly became an ally, even advising the LGBT club Eli established called GLOW (Gay, Lesbian Or Whatever). “He’s cisgender, he’s straight,” Eli recalls, “but he’s passionate about advocating and making sure all of the kids in our club succeed in school and aren’t held back because of how they identify.”

Eli also found an advocate in his school principal, who located a gender-neutral restroom for him to use at school. “I would not have thought that my principal would have been helpful because he drives a big red truck with a gun rack on it,” recounts Eli. “But when all of the transgender stuff came to the table, he was like, ‘I don’t really understand, but Eli’s a good kid and we’ll get him what he’s entitled to.’”  

Although it was not without obstacles, the relative ease of Eli’s transition is rare. The 2013 GLSEN National School Climate Survey found that, compared to their LGB peers, transgender and gender-nonconforming students face the most hostile school climates. According to the National Center for Transgender Equality, in 2015, 75 percent of transgender youth felt unsafe at school, and those who did not drop out altogether were more likely to miss school due to a safety concern, have significantly lower GPAs, and were less likely to plan for future education.

The good news is educators are learning more about how to support nonbinary youth at school. One of the most important lessons? The needs of transgender youth remain distinct from those of their LGB peers—and they extend beyond pronoun usage and bathroom access.

“When Kids Like Me Grow Up …” Experts cite mentorship as instrumental for trans students’ success, but formal mentors are scarce. Jenn Burleton, executive director of TransActive Gender Center in Portland, Oregon, sought to establish a trans-to-trans mentoring program but failed to locate enough transgender adults for similarly identified youth.

“Right now what these kids do not have is enough of a sense that: ‘When kids like me grow up, there’s an adult version of me doing what everybody else does and getting through the day. They’re there for me to see and know that there’s a place for me to walk when I get older,’” Burleton says. “Not letting kids see that can give them a subliminal sense that there is a dead end to their identity or that hiding is the only way to be.”    

Kiera Hansen, a genderqueer-identified social worker in Portland, Oregon, is attempting to fill this void. Hansen—who prefers the pronoun they—helps run an afterschool drop-in program where almost everyone identifies as trans or gender-nonconforming. While funding sources have diminished, their team has pooled resources throughout the city to create a tight-knit group. Outside of the group, Hansen has accompanied mentees to school when they need support, meeting with teachers to ensure access to the right bathrooms, use of the right pronouns, and to address any other issues students might face.

Hansen cites modeling vulnerability as a key to successful mentoring. “I’m surviving a lot of things on a regular basis, just as the youth are,” they recount. “I am genuinely honest with them. We’re transparent about the hurdles and barriers we go through in life and in the program. We do not make everything look perfect and well-put-together. We want them to have the tools to interact with the systems that are often working against them and their voices.”

One of the members of their drop-in group, Cameron, is about to graduate from high school and attributes part of that success to the group. “I have a really bad attendance problem with school,” he confides, recounting frequent bullying, including being compared to a wild animal in sociology class. “Having this group to look forward to every week has been one of the motivations that brings me back to school.”

Gender Identity Competency When working toward success at school for transgender students, it is paramount for youth to identify an adult with whom they feel safe. Johanna Eager, director of the Human Rights Campaign’s Welcoming Schools program, coaches educators around gender identity competency. She trains schools to help transitioning students identify a knowledgeable staff member who may or may not be trans but to whom students feel safe going during the day. “Any trans student needs to know who their safe person is,” she says. “You are vulnerable if you are the only one.”  

Eager says there is no formula to positive mentorship. Some mentors are passionate and informed based on experience. Some are naturally kind and caring, with no formal training. “I’ve seen educators who don’t have much knowledge tend to the social emotional health for a trans child, and I have seen folks who are trans or LGBTQ be supportive with their knowledge. It can be either and it always has been.”

Above all, quality mentors trust that transgender youth know who they are and what they need. As one father reflected about parenting his transgender son, “There were never any conscious decisions. It was always intuitive, following him. It’s about letting him lead and supporting wherever he is. That line is always moving.”

Transgender youth are looking, first and foremost, for adults to respect their chosen names and pronouns. Making this effort validates young people’s core identity and solidifies their safety. Without it, a trusted relationship cannot be built. As Cameron says, “People using your pronouns and correct name without fail is wonderful. When people do it with no question, you can tell they see you the way you want to be seen.”

Earning the trust and respect of transgender students requires educators to uncover any internalized transphobia and recognize personal biases. Some allies find it takes time to mentally de-align gender and genitalia. Still, adults cannot show up for youth without honestly accepting their feelings and beliefs. If they skip this crucial step, youth will notice. This is the case for Todd, who is genderqueer and can read their teachers’ facial expressions as measurements of acceptance and safety.

Once educators recognize their own behaviors and microaggressions, they’re better equipped to identify microaggressions, bullying and harassment when they happen in schools. Even if it appears minor, these behaviors need to be interrupted in the moment. Too often transgender students expect no assistance from teachers; being ostracized becomes the norm. As one trans middle school student—who is now homeschooled—attests, “As long as it doesn’t escalate to a screaming match, they think everything looks fine.”

Furthermore, the interruption does not have to be impeccable. Eager recommends, “Just say something. You may screw it up, it may not feel comfortable, it may not be perfect. But saying something is better than saying nothing, and you need to say it because everyone is watching to see if they are going to be safe.”

If necessary, distinguish between the personal and the professional. Lead author of the resource guide Schools In Transition, Asaf Orr, stands behind educators who are “on board” regardless of their personal beliefs. “In their private lives these educators may not be supportive of gender exploration,” Orr notes. “But when they get to school, they know it’s critical to be 100 percent supportive of a kid’s own gender exploration, and they ensure the space for them to do that.”    

Educators can support their trans students by including nonbinary identities in the curriculum. As Cameron asserts, “With every sex ed class we have that’s not inclusive, and every English class where there’s no inclusive literature, there’s another trans kid that feels so alone.”

Recognizing nonbinary gender identities depicted within student work is also important, as youth are likely to reflect themselves most accurately. One agender-identified seventh-grader, Jace, remembers feeling safe after a teacher commented on their agender character drawing, saying they “looked cool.”

Finally, do not assume. Nontransidentified adults, says Cameron, “are never going to be able to fully understand what any trans person is going through. Adults need not question the way a person feels about themselves, because they do not know. They are never going to feel the same way. And we have to figure ourselves out.”

Transgender youth know what they need to feel safe. Strong mentors ask them.