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How new Title IX rules could affect California’s transgender and nonbinary students

Eli-Erlick-TH-01-CM.jpg
Talia Herman
/
CalMatters
Eli Erlick, the co-founder of Trans Student Educational Resources, in her parents' backyard in Sebastopol on Dec. 26, 2022.

New Title IX rules barring gender discrimination could put more responsibility on colleges to protect transgender and nonbinary students. But those students say creating welcoming campuses will require more than just policy.

It took Xander nearly a decade to try community college again.

The incoming American River College student first attempted higher education in North Carolina in 2013. But navigating campus as a man who is transgender was a nightmare, said Xander, who’s now 30 and asked to use his first name only because he did not want to publicly reveal that he is trans.

In the classroom, he said, people refused to call him Xander. Classmates misgendered him, deadnamed him — using his former name from before he transitioned — and told him he was in the wrong bathroom. He never knew when a confrontation might escalate to violence. Eventually, he said, he began living a double life, taking on different personas inside and outside the school walls.

“I was out to my friends, but at school I gave up with letting people deadname me and misgender me, like it wasn’t worth the fight anymore,” Xander said. “And it wasn’t worth the risk.”

Xander’s experiences mirror those of other transgender students in the U.S.; according to an April survey by The Williams Institute, a think tank at the UCLA School of Law, more than a third of transgender people report experiencing bullying or harassment in college.

President Joe Biden’s administration aims to protect students who identify as transgender and nonbinary from discrimination under new rules proposed in June and now making their way through the Education Department’s lengthy rulemaking process. If finalized, the changes to Title IX, the 50-year-old civil rights law, would clarify that its ban on discrimination on the basis of sex extends to sexual orientation and gender identity.

So what impact will the expanded protections have on college campuses in California, a state that has already passed laws barring discrimination based on gender identity and gender expression?

Legally, not so much, say civil rights lawyers. But the proposed guidelines will remove ambiguity about what Title IX covers and put more responsibility on schools to address discrimination, they say. Students and college employees who advocate for LGBTQ rights told the CalMatters College Journalism Network that while they applaud the change in federal policy, campuses must go beyond the letter of the law to ensure that they are safe and welcoming places for transgender and nonbinary people to learn.

“What we see is that queer and trans students generally feel less welcome on their college campuses and more concerned about their physical safety, but also their emotional safety,” said Emilie Mitchell, dean of social and behavioral sciences at Cosumnes River College and co-organizer of an annual LGBTQ+ summit for the state’s community colleges. “Are they going to be mistreated in a classroom? Is their identity going to be a class topic for debate?” The new rules are reassuring, she said, because they give “a lot less wiggle room to people who might want to behave in really destructive ways towards the queer and trans community.”

Among other changes, the guidelines require colleges to monitor their campuses for gender discrimination and “take prompt and effective action” to fix it — stronger language than the previous requirement to be “not deliberately indifferent.” And by explicitly writing in protections, they ensure that anti-LGBTQ discrimination can be handled under Title IX instead of being rerouted to other disciplinary processes, said Kel O’Hara, a staff attorney at Equal Rights Advocates, a legal and advocacy organization specializing in gender issues.

The new rules also could lead the federal Department of Education’s Office of Civil Rights to investigate more gender discrimination complaints against schools, said Carly Mee, a civil rights attorney at Trister, Ross, Schadler & Gold, PLLC.

“It’s important to have an external mechanism where you can go and file that complaint and say, ‘My school is not protecting my rights,’” she added. “That will be a big deal for trans and nonbinary students.”

“While on paper, trans students are certainly protected in our schools, we don’t always experience that.”
ELI ERLICK, UC SANTA CRUZ DOCTORAL STUDENT AND CO-FOUNDER OF TRANS STUDENT EDUCATIONAL RESOURCES

The Education Department has already issued informal guidance saying that Title IX protections apply to gender and sexual orientation, but a federal judge in July temporarily blocked the department from enforcing that interpretation in 20 states that sued, saying the advice conflicted with anti-trans laws they’d already passed. Controversy has erupted in a number of states over whether transgender students should be allowed to participate on sports teams that correspond with their gender identity; the Biden administration has said it will issue a separate Title IX rule specifically addressing athletics.

Attorneys with the conservative Pacific Legal Foundation argued in a September op-ed in The Hill that the new rules would “pose a severe threat to free speech” by censoring viewpoints such as that of a professor who “declines to use a student’s preferred pronoun because of her religious beliefs.”

In California, a new law took effect this year requiring public colleges to update records for students who have legally changed their names, including as a result of a gender transition, and allowing graduates to request an updated copy of their diploma for free. Starting with the next academic year, colleges must allow students to self-identify their names on diplomas even without documentation of a legal name change.

The state’s public university systems say they are reviewing the impact the Title IX changes could have for their respective campuses, with University of California spokesperson Stett Holbrook saying they “represent a great improvement over the regulations issued by the previous administration in 2020, many of which UC opposed.”

UC campuses are also rolling out a gender recognition policy that goes beyond the state law to ensure people are identified by their accurate gender identity and name in all their interactions with the university. Another state law will require the community colleges to do the same, starting next fall.

Transgender and nonbinary students say policies alone aren’t enough.

“While on paper, trans students are certainly protected in our schools, we don’t always experience that,” said Eli Erlick, a doctoral student at UC Santa Cruz who co-founded Trans Student Educational Resources, a national organization led by trans youth.

Erlick said it’s crucial to have campus support networks built by and for trans people.

When she co-founded the organization, she said, “this was the idea: to help people understand their rights, know their choices and opportunities and know what they can do to protect themselves.”

At UC Santa Cruz, Fénix López, a fourth-year undergraduate, has built their own community on campus. Lopez, who identifies as queer and nonbinary, helps run the Lavender Club, a queer undergraduate group, and is a resident assistant for the LGBTQ-themed floor in their college residence hall.

“As a queer person, I feel like I have to make my own spaces,” they said. This year, those spaces include a “Queersgiving” event that the club hosted.

“The point was to kind of celebrate not Thanksgiving but gathering with your friends, having a meal with your found family, because I know that the holidays can be rough for a lot of queer individuals,” López said.

Universities need to pay more attention to meeting transgender and nonbinary students’ basic needs, López said, which include not just housing and food but “making sure you have a community, that you feel that you have that sense of belonging.”

“What we see is that queer and trans students generally feel less welcome on their college campuses and more concerned about their physical safety, but also their emotional safety.”
EMILIE MITCHELL, CO-ORGANIZER, CALIFORNIA COMMUNITY COLLEGES LGBTQ+ SUMMIT

Despite the protections California transgender and nonbinary students have, campus staff who work with those students say they still regularly hear reports of misgendering and other negative experiences on campus.

delfín bautista, director of the Lionel Cantú Queer Resource Center at UC Santa Cruz, said that while California was more welcoming to transgender and nonbinary students than Florida and Ohio, where they previously lived, “students do feel invisible, and they don’t feel necessarily embraced and affirmed.”

Per California law, all single-stall restrooms on the UC Santa Cruz campus are gender neutral – but they are in short supply, said bautista, who lower-cases their first and last name. And while UC Santa Cruz policy says that athletes can use whatever locker room they identify with, that doesn’t mean they always feel safe doing so, bautista said.

At UC Berkeley, graduate students often tell Em Huang, the campus’s director of LGBTQ+ Advancement and Equity, that the professors they work with misgender them or call them by an incorrect name. It can be easier for that to happen in small labs, Huang said, where there are fewer people around to speak up and the student feels isolated.

O’Hara, the Equal Rights Advocates attorney, said that when representing students in Title IX proceedings, they have been misgendered by Title IX coordinators and so have their clients.

“If you’re trying to seek safety and protection and resolution on campus, but the people you’re interacting with barely understand you, that doesn’t feel safe, that doesn’t feel OK,” O’Hara said.

At American River College, where Mitchell used to work, a 2019 survey found that nearly one-third of about 1200 students felt it was necessary to hide their gender identity from fellow students, with an equal number saying they hid it from their professors.

While the college has a Pride Center, Mitchell estimated that fewer than a dozen of the state’s 115 community college campuses have such a center with at least one paid staff person.

“There are a lot of campuses that rely on unpaid volunteer staff or advocates,” Mitchell said. “When you’re talking about institutional support, right, an institution saying, ‘We’re really interested in providing high-level services to our queer and trans students,’ I don’t know how you do that when you rest all those efforts on the shoulders of the committed but unpaid.”

The state Legislature allocated $10 million last year to the California community colleges to support LGBTQ students; Melissa Villarin, a spokesperson for the Chancellor’s Office, said colleges are using the funds for LGBTQ-focused centers and curriculum, professional development and mental health care, among other services.

Campus advocates say students often are confused about Title IX and what their rights are under the law. Some said universities should create and publicly post an LGBTQ bill of rights, and that the Department of Education should give schools specific examples of prohibited types of conduct unique to transgender and nonbinary students.

The new Title IX rules, said O’Hara, could also make a difference in cases like California State University’s Maritime Academy, where the Los Angeles Times reported that “claims of widespread sexual misconduct, homophobia, transphobia and racism” have roiled the campus. One cadet filed a Title IX report over messages in a group text chat where cadet leaders mocked LGBTQ classmates, according to the Times, but both the campus and the Cal State chancellor’s office found that the chat, which did not name any person, was protected speech under the First Amendment.

O’Hara, who is not involved in the case, said that their first question as a Title IX attorney would be, “OK, what else is going on?”

“Because if that’s how your classmates are talking about you in their private messages, chances are they’re doing other things to make you feel uncomfortable in your identity,” O’Hara said. The new rules’ affirmative monitoring requirement would put the responsibility on the school to gather that evidence, O’Hara said.

In addition to the challenges, transgender students also told the CalMatters College Journalism Network about times they felt supported on campus.

Erlick, who received her bachelor’s degree from Pitzer College, said there were a lot more resources there, and later at UC Santa Cruz, than in her hometown of Mendocino County. She found student groups that helped her thrive and learn in an academic environment that also incorporated queer and trans people, she said.

As Xander navigates the enrollment process at American River College, he said staff never mention his former name out loud if it appears in legal documents. Instead, to avoid outing him, they’ll show him the name on a computer screen or say the first initial, he said.

While working to have his name changed in the college’s system, he connected with a staff member who told him, “Oh, I understand. I’m nonbinary. I went through a name change.”

“I was like, wow, that’s super cool. Like knowing that there’s a trans person on staff,” Xander said. “And so that made me feel safer. It made me feel a lot better actually.”

Shaikh is a former fellow with the CalMatters College Journalism Network, a collaboration between CalMatters and student journalists from across California. Network fellow Oden Taylor contributed reporting. This story and other higher education coverage are supported by the College Futures Foundation.