public-policy article

Administration Seeks to Remove Non-Binary Identities from Law

October 23, 2018

By Marie Camino

On Sunday, the New York Times obtained a memo from the administration revealing plans to redefine the legal definition of gender as “a biological, immutable condition determined by genitalia at birth” under Title IX, A Department of Education (ED) statute that prohibits any education program receiving federal funding from discriminating on the basis of sex. While the administration has so far declined to comment, this change would define sex as only male or female, and consider it a biologically given, unchangeable identity. Any disputes would be resolved by genetic testing.

The number of programs receiving federal funds are vast, and include both state and local educational institutions. Overall, Title IX applies to over “16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums.” The statute mandates nondiscriminatory practices in recruitment, admissions, financial assistance, disciplinary actions, employment, and counseling, among other things.

Should the memo be codified, federal recognition of approximately 1.4 million people who identify as transgender would effectively end, excluding them from protections under Title IX.

Impact in Schools

Last week, GLSEN, the leading national education organization focused on ending bias-based bullying, violence, and discrimination in primary and secondary schools, released

their 2017 National School Climate Survey. The survey revealed that 4 in 10 transgender or gender nonconforming students experience gender-related discrimination within the school system. Significantly, over 8 in 10 transgender students reported being harassed because of their gender identity, and over half of those students were barred from using school facilities, such as locker rooms, that matched their gender. Additionally, students reported an inability to use their chosen names and pronouns in school.

The legal erasure of non-binary identities would subvert the well-being of all LGBTQ+ youth. All students, regardless of their gender identity, deserve equitable access to educational resources that help them learn, thrive, and reach their full potential. To learn more about GLSEN’s resources on the topic, check out their response to the memo.