Surveying the Law and Policy Terrain: Pursuing Transgender and Nonbinary Equity in K–12 Schools

• In Event: Transgender Studies in K–12 Education: Mapping an Agenda for Research and Practice

Abstract

This paper is informed by a trans studies lens and provides a critical examination of laws and policies related to gender equity, gender identity, and gender expression. The presence of transgender people in K-12 schools is not an idiosyncratic event affecting only a few people; the issue is institutionalized, structural, and embedded in the development and implementation of law and policy. Many forms of gender diversity have long posed challenges to schools seeking to establish normative gender, and the response has been legal erasure of gender diversities and/or reliance on strictly local policymaking over higher governmental authorities. In the U.S., this process begins with the colonial efforts to eliminate gender diversities among Indigenous peoples, people of African descent, and immigrant populations, as well as limitations put on the education of cisgender women. The pressure to teach about and only recognize normative binary gender continued as schools became more firmly institutionalized in law and policy across the U.S. As such, the pursuit of gender-based equity in K-12 schools builds on strategic litigation efforts to break the separate but equal doctrine and obtain equal access to education for Mexican American students (e.g. Mendez v. Westminster), and soon thereafter, for African American students (e.g. Brown v. Board of Education).

Trans and nonbinary students and school employees have multiple existing pathways – including a number of law and policy tools – to secure education and workplace rights, yet the configuration and application of these laws and policies also demonstrate the multilayered ecology of school law and policymaking. Further, the lack of consistency across school district policies and practices, state-level laws, national guidance, federal laws, and court interpretations of laws and policies, at all levels, shows that this ecology is perpetually shifting and contested. By examining the frames in which such law and policies are embedded and the strategic uses to which they are put, educators can better develop, implement, and educate about trans equities in schools.

This paper concludes with suggestions for ethical principles of inclusion and respect for difference to help policy makers, legislators, judges, educators, families, and students navigate the tensions around trans and nonbinary student rights and needs, no matter what the particular policy context of their schools. Acceptance and affirmation for trans students and K12 employees is slowly growing, albeit unevenly, as is awareness of nonbinary, gender fluid, etc. people, whose existence beyond the binary is typically seen as troubling and impossible to manage institutionally by adults in schools. Ensuring that educators continue to examine the roots and effects of law and policy is critical, as is engaging trans and nonbinary people in K12 schools to understand their experiences of the education system.

Authors

• Cris Mayo, University of Illinois at Urbana-Champaign

• Madelaine Adelman, Arizona State University

• Mollie McQuillan, University of Wisconsin - Madison