Solidifying Students' Right to Gender Expression

9 Pages Posted: 24 Jan 2024 Last revised: 3 Apr 2024

Date Written: 2024

Abstract

The genders and sexualities of students are regulated, shaped, and oppressed by formal school policies and informal educational norms. Some of these policies are quite obvious; others subtler. Such regulation includes rigid binary-based dress codes, ad hoc policing of gender non-normative clothing, sex-segregated spaces and activities, regulation of student pronoun use, and literal gender identity committees for determining students’ eligibility for athletic participation. Against this backdrop of social control, students routinely seek freedom—the freedom to explore, understand, develop, and express their genders and sexualities. Indeed, expression of one’s gender and sexuality—through clothing, nomenclature, pronouns, association, use of sex-segregated spaces, and more—is at the heart of being and becoming one’s gender and sexuality. For those reasons, the First Amendment’s protections for free speech—for free expression—have served as a cornerstone of queer liberation for over a half-century, protecting queer people’s ability to gather together, develop their identities, and share their experiences. And to the extent the First Amendment provides special solicitude to speech that runs against cultural grains, renewed emphasis on the expressive components of gender identity could provide significant protection for beautifully nonconforming gender identities. Notwithstanding the First Amendment’s queer pedigree and emancipatory potential, the operationalization of free speech rights for transgender and gender-nonconforming students remains underdeveloped. That lack of precise development leaves queer students’ right to expression (and right to their identities) vulnerable to erosion or, worse still, weaponization against them.

Thankfully, Dara Purvis’s new article, Transgender Students and the First Amendment, provides a great service by refining the governing tests for determining whether schools are impermissibly infringing students’ gender expression. Building on her tremendous prior scholarship in this area, Professor Purvis underscores how students’ gender expression is potentially vulnerable to regulation pursuant to two principal doctrinal arguments that may help such regulation elide the First Amendment. The first riposte Purvis addresses is that students’ non-normative expression is “disruptive” to the educational environment and therefore permissibly silenced pursuant to the governing test first articulated in Tinker v. Des Moines. The second is that students’ gender expression might be characterized as lewd and therefore subject to constitutionally tolerable restriction pursuant to Bethel v. Fraser. With regard to each, Purvis confronts these potential doctrinal vulnerabilities by taking account of the broader social ecosystem of both the school house and the state house. In other words, she flips the scripts and explains how the schools and legislatures themselves are disrupting transgender students’ expression and sexualizing nonnormative gender identities.

Keywords: transgender, nonbinary, gender identity, LGBTQ, First Amendment, education

Suggested Citation

Skinner-Thompson, Scott, Solidifying Students' Right to Gender Expression ( 2024). 104 Boston University Law Review 503 (2024), U of Colorado Law Legal Studies Research Paper 24-3, Available at SSRN: https://ssrn.com/abstract=4705216

Scott Skinner-Thompson (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States
(303) 735-5294 (Phone)

HOME PAGE: http://lawweb.colorado.edu/profiles/profile.jsp?id=818

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
62
Abstract Views
540
Rank
657,141
PlumX Metrics