Gender and the Law Blog

House Votes to Amend Title IX to Prohibit Trans Girls from Women's Sports in Schools

House Votes to Amend Title IX to Ban Trans Girls from Women Sports in Schools

The House on Tuesday voted 218-206 to ban transgender girls and women from girls’ sports in federally-funded schools by amending Title IX, the federal civil rights law that prohibits sex discrimination in educational institutions. This bill, the first federal anti-trans law brought to a vote in a newly GOP-controlled Congress, is Democrats’ first test on whether they will fight an expected wave of proposed anti-trans laws under President-elect Donald Trump. 

If passed into law, this legislation would change Title IX and revoke federal funding for schools that allow trans girls and women in sports teams that align with their gender identity. Public K-12 schools would be implicated by this new rule, as well as colleges and universities. The bill was brought by Rep. Greg Steube of Florida, who reintroduced legislation he had previously tried to get through the House, alongside an identical bill in the Senate from Sen. Tommy Tuberville of Alabama. 

This legislation would change the actual statute of Title IX to explicitly exclude transgender people from a federal civil rights law — a major setback for LGBTQ+ rights that would leave trans and nonbinary students more open to discrimination and with fewer avenues to fight it. Notably, the effect of this law would go further than a recent judicial ruling in Kentucky that rolled back Title IX protections nationwide for LGBTQ+ students. 

Hedging: University Responses to the Overturn of Roe in Abortion-Ban States

Clare Daniel and Kimala Price have published "Hedging: University Responses to the Overturn of Roe in Abortion-Ban States" in volume 63 of American Studies (2024). The abstract is excerpted here: 

Colleges and universities in states with near-total abortion bans began navigating new terrain regarding public relations, student affairs, and community accountability after the overturn of Roe v. Wade. Many institutions found themselves in a quagmire of risk assessment that overshadowed the ongoing social justice and human rights issues presented by the lack of abortion access for their students, faculty, staff, and surrounding communities. We analyze the responses of six similarly positioned private institutions in abortion-ban or abortion-restrictive states. Drawing on reproductive justice scholarship, we utilize feminist critical discourse analysis to examine official statements by top university administrators and contextualize them within the institutions’ competing interests as determined through an investigation of news media and scholarship on higher education. We also look at writings created by student and employee activists aiming to influence institutional responses, and we examine the specific tactics and material resources deployed by these universities in the aftermath of Dobbs v. Jackson Women’s Health Organization. Ultimately, we argue that, as universities have become increasingly run like businesses over the last several decades, concerned primarily with their bottom line and risk aversion, institutions in states with severe restrictions or bans on abortion engage in a complex balancing act of several competing interests of which reproductive justice is only one if it is considered at all. Accordingly, we conclude that only when the effects of abortion bans on these institutions’ economic viability become clearer over the next few years are we likely to see universities use their considerable political power to pressure state legislatures on reproductive rights.

Study Analyzes Gendered Service Work in Academia

Margaretha Järvinen and Nanna Mik-Meyer, Giving and Receiving: Gendered Service Work in Academia, Current Sociology (2024) [ResearchGate Link]

Deploying the perspective of ‘relational work’, this article investigates the mechanisms behind the gender-unequal distribution of academic service. The concept of relational work is used to analyse how men and women in academia balance collective against individual interests when agreeing or disagreeing on service tasks. Four types of relational work are identified: compliance, evasiveness, barter and investment, with compliance being more common among women, evasiveness and barter being more common among men and investment being tied to temporality in a gendered pattern. The article shows that men are more successful in pursuing individual interests against service demands and how this depends on their relational work as well as organisational role expectations, reducing women’s prospects of ‘saying no’. The study is based on qualitative interviews with 163 associate and full professors in the social sciences and CV data on their service contributions.

SCOTUS Decision Freezing Title IX Rules Made a Huge Mess

The case is Department of Education v. Louisiana, 603 U.S. ___ (Aug. 16, 2024)

Newsweek, Supreme Court Made a "Hugh Mess" With Title IX Ruling

The Supreme Court's recent ruling on transgender rights in education is a giant mess that has left everyone confused, a legal analyst has said.

Steve Vladeck, a law professor at Georgetown University in Washington, D.C, wrote that the court's ruling on a pair of emergency applicants raises more questions than it answers.

The controversy involves the federal civil rights legislation, Title IX, which was introduced in 1972 to end discrimination against women in education.

The Biden administration introduced a "final rule for Title IX," which would use those protections to end "sex stereotypes, sexual orientation, gender identity, and sex characteristics."

It has been met with fierce opposition in many conservative states, where parents argue it will lead to transgender students in women's toilets and women's sports teams.

In two lawsuits—Department of Education v. Louisiana and Cardona v. Tennessee—lower federal courts temporarily blocked the entirety of the new rules while the cases play out in appeals court.

The Supreme Court agreed to hear an emergency case from the Department of Education, which is seeking to lift those lower court emergency injunctions.

In a 5-4 majority decision on Friday, the Supreme Court declined a Department of Education emergency request to reinstate portions of the new rules that are not related to gender identity and sexual orientation, with the majority writing that they were not given "a sufficient basis to disturb the lower courts' interim conclusions."

Conservative Neil Gorsuch joined liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in dissent, arguing that the gender identity and sexual orientation rules should be paused during the appeals because they are related to alleged "injuries" suffered by the states, but the rest of the new rules should resume.

Writing in his Supreme Court blog, One First, Vladeck explained that he wanted to focus on Friday's Department of Education v. Louisiana case because "it was literally the only ruling that the Court handed down last week and because it's both a big deal and a huge mess."

Vladeck's problem with the ruling is that it freezes all of Biden's new rules on Title IX, the vast majority of which has nothing to do with transgender rights.

"The rule does lots of other things … many of which have nothing whatsoever to do with gender identity," he wrote.

Re-examining the Three-Year Legal Education Through a Critical Theory Lens

Paula A. Monopoli, Remembering the Origins of Modern Legal Education, 85 University of Pittsburgh Law Review 305 (2023)

American legal education came under tremendous pressure in the wake of the 2008 financial crisis. That crisis precipitated a decline in law school applications and a concomitant decrease in the size of American law school enrollments during the 2011-2012 academic year. Commentators offered a myriad of proposals for reforming legal education during that period. Yet many of those proposals failed to gain traction, and a decade later legal education looks much the same, albeit with smaller enrollments. One of those proposals was to shorten the three-year course of study. In this Article, I revisit the origins of that long-standing feature of American legal education introduced by Christopher Columbus Langdell, Dean of Harvard Law School, in the nineteenth century and later embraced by the legal education's regulatory bodies in the twentieth century. Viewed through a critical theory lens, its intractability can be explained, in part, by the persistence of exclusionary impulses and masculine norms in the legal profession from its origins to the current day. This Article proposes that American law faculty revive previous conversations about the value of this central design feature. And the subordinating effects of that feature should be a factor in weighing the costs and benefits of moving to a shorter course of study.

The Differences in Formal and Informal Faculty Mentoring by Gender and Race

Gina Scutelnicu Todoran, "The Contribution of Formal and Informal Mentorship to Faculty Productivity: Views of Faculty in Public Affairs Programs," Journal of Public Affairs Education 29(4), 404-420

This study examines how mentorship opportunities contribute to the productivity and career growth of public affairs faculty, stratified by gender and race. The study uses primary data coming from an original survey administered at two different points in time (2017 and 2021) to faculty who are part of NASPAA member schools. Results indicate that women and faculty from racially under-represented groups are more likely to receive formal mentoring whereas men and white faculty are more likely to benefit from informal mentoring. Additionally, results show that the relationship between mentoring approaches and research effort differed by the faculty’s member gender and race with formal mentoring contributing to the research effort of men and white faculty across all academic ranks and university types, and informal mentoring contributing to the research effort of mid-career faculty of all genders and races. This study aims to inform individuals and universities about mentoring trends and contributions.

Title IX in the Age of Textualism

Katie Eyer, Title IX in the Age of Textualism, 86 Ohio State L.J. (forthcoming 2025)

Title IX has long been thought of as a quintessentially administrative statute, i.e., a statute whose contours are defined primarily by its agency interpreters. Known as much for its administrative interpretations as for its statutory text, both the public image, and legal enforcement of Title IX have been profoundly shaped by the administrative state. This Article asks: what becomes of such an “administrative law” in the wake of the rise of textualism?

This question has gained new urgency, as the most recent Title IX regulations issued by the Department of Education are facing numerous legal challenges—and as the Supreme Court’s opinion in Loper Bright Industries v. Raimondo has led to a rapidly shifting administrative law landscape. This Article thus takes up the question of how Title IX may be understood in the changed interpretive environment. Does Title IX’s statutory text provide meaningful guidance in relation to contemporary Title IX disputes? And how might an examination of Title IX’s regulations help us to understand the space for administrative agencies to act in a post-Loper Bright world?

This Article contends that Title IX’s statutory text can and does provide clear guidance on many of the contemporary issues that have been raised in challenges to the Department of Education’s most recent regulations. Thus, simply taking Title IX’s statutory text seriously can answer the question of whether (as the DOE’s new regulations provide) anti-LGBT discrimination is proscribed (it is), whether regulatory exceptions that exceed the statutory text must be harmonized with the statute (they must), and whether the DOE’s recently adopted hostile environment standard is too broad (it is not).

But this Article also suggests that other, future, challenges to Title IX’s administrative infrastructure may prove more complex. Taking up the example of Title IX’s athletics regulations and guidance, the Article suggests a series of important questions that the courts will have to resolve as they consider the role for statutory text—and the role for administrative law—today. While the answers to such questions will necessarily be case-specific—and as the case of Title IX”s athletics regulations shows, may well be susceptible of conflicting answers—they will be central to understanding the role for administrative law in our modern textualist era.

New Book, The Bluestockings: A History of the First Women's Movement

NYT, Book Review, Book Review, The Bluestockings, When Women's Wits Ruled London's Salons

*** Both Woolf and Wollstonecraft argued far more stridently for women’s rights than did Macaulay or her peers, a loosely connected group of 18th-century British women writers and thinkers known — sometimes derogatorily, sometimes affectionately — as the Bluestockings. But as Susannah Gibson argues in her fast-paced and intimate study of the group, the Bluestockings’ feminist revolution lay in their determination to think and write and educate themselves, despite the “pitiless machinations” of British society, which kept single women dependent on their fathers, and married women subordinate to their husbands.

First Amendment Law of Student Speech as Protection for Transgender Youth

William M. Carter, Jr. "Trans Talk" and the First Amendment,   

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding.

Sixth Circuit Upholds School Misgendering Policy, Saying Objectors Can Avoid Using Pronouns

ABA J. 6th Circuit Refuses to Block School's Pronoun Policy; Dissent Makes Belief-in-Ghost Comparison

A federal appeals court has refused to block a school policy banning the misgendering of transgender students.

The plaintiff, a group called Parents Defending Education, did not make a clear showing that the policy violates the First Amendment, the 6th U.S. Circuit Court of appeals at Cincinnati ruled Monday in a 2-1 decision.

At issue was a policy adopted by the Olentangy Local School District in suburban Columbus, Ohio, report Courthouse News Service and Reuters.

The school’s policy banned discriminatory harassment and bullying based on protected characteristics that include gender identity. The policy barred intentional and repeated use of nonpreferred pronouns when referring to transgender classmates.

Parents Defending Education had alleged that the policy violated the constitutional rights of students who don’t believe in gender transitioning because of their religious beliefs. The 6th Circuit, however, said students don’t have to use preferred pronouns because they can avoid using any pronouns when referring to transgender classmates.

“Students who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all and refer to their classmates using first names,” the appeals court said in the July 29 opinion by Judge Jane B. Stranch.

The plaintiff did not make a clear showing that the policy unconstitutionally compels speech, or that it constitutes unconstitutional viewpoint discrimination, said Stranch, who is an appointee of former President Barack Obama.

In her dissent, Judge Alice M. Batchelder said there was a First Amendment violation, and the majority opinion had created a circuit split.

The majority opinion “requires the speaker to recognize and accept that gender transition is a real thing,” Batchelder said.

Teaching Law After Dobbs: Rethinking Foundations and Analyzing New Concepts

Nicole Huberfeld, Linda C. McClain & Aziza Ahmed, Rethinking Foundations and Analyzing New Concepts: Teaching Law After Dobbs, 17 St. Louis U. J. Health L. & Pol'y 243 (2024) [Westlaw Access]

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs' overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”--and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

How the Texas Title IX Case is About a National Abortion Ban

Jessica Waters has published an important column on how "Texas's Title IX case is about a national abortion ban, not student attendance" with The Hill. The column flags an important new case challenging Title IX in Texas. A link to the Complaint is here. Waters summarizes the allegations of the two professors as plaintiffs: 

The two plaintiff professors have declared (in advance) that they will not comply with the Title IX guidance. They lodge a range of complaints about using non-binary gender pronouns and “cross-dressing” teaching assistants, and, notably, students who seek abortions.
 

They state that they will refuse to excuse a student’s class absence — read: they will impose grading penalties — if the absence is related to “elective” abortion. 

More specifically, they state that they will academically penalize a student who is absent because she obtained an “elective” abortion (an illegal abortion in Texas), got FDA-approved medications for a self-induced abortion or traveled to another state to obtain a safe and legal abortion.

They go on to opine (with their finance and philosophy expertise, naturally) that “elective abortion” is not “health care” or a “medical procedure.” And finally, they state that they will not hire any teaching assistants who “aid or abet” someone seeking an abortion because they refuse to employ “criminals” and “lawbreakers.” 

Waters concludes that: 

This case is not about class attendance policies. This is about the continuation of a deliberate strategy to make sure those seeking or providing abortions do so with threats of criminal prosecution, loss of medical licenses, civil lawsuits — or now, denial of educational and employment opportunities — hanging over them.

It is about making sure family members, friends, partners — or now, teaching assistants — know that they help a pregnant person find safe abortion care at their peril.

It is about making it harder for pregnant patients, faced with draconian abortion bans in their home states — or now, the states where they attend school — to travel to states where abortion is legal. 

It is about continuing to position abortion as “not health care” or not a “medical procedure.” It is about underpinning arguments that medical decisions about abortion should be made by legislators and judges — and now, finance and philosophy professors — rather than doctors and their patients. 

Read Waters' full column here. 

Gender Sidelining in Schools and the Scourge of Single Sex School Leadership

Jessica Fink & Dr. Kelley King, Gender Sidelining in Schools and the Scourge of Single Sex Leadership 

Concerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace-bias referred to in other research as "gender sidelining." This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender-including the education sphere. In this way, the K-12 education world represents a microcosm of the bias that female workers encounter more generally-workplaces rife not only with intentional bias, but also with more nuanced barriers, which culminate to create a work environment where women face dead ends, diversions and delays in ways not reached by traditional antidiscrimination laws. This article examines some of the barriers that have prevented women in the K-12 education world from achieving leadership roles, focusing, in particular, on obstacles that largely sit outside of the law-incidents of gender sidelining that would not on their own form the basis of a viable sex discrimination claim. Drawing on both legal principles and social science research, this article not only identifies the extent to which the careers of many women in education have been derailed by various forms of gender sidelining, but also provides suggestions for how to ameliorate these destructive impacts.

Jamie R. Abrams Publishes Book on "Inclusive Socratic Teaching" with UC Press

I am excited to share with blog readers that I have published a new book on Inclusive Socratic Teaching: Why Law Schools Need it and How to Achieve It with the University of California Press. The book's synopsis is pasted below. Of particular note to readers is the way in which the book draws upon the sustained and impactful contributions of Feminist Legal Theorists naming and documenting critiques of problematic Socratic performances for over a half of a century. It then maps a set of implementable techniques to adapt and modernize the Socratic method to be more inclusive, effective, and equitable.   

For more than fifty years, scholars have documented and critiqued the marginalizing effects of the Socratic teaching techniques that dominate law school classrooms. In spite of this, law school budgets, staffing models, and course requirements still center Socratic classrooms as the curricular core of legal education. In this clear-eyed book, law professor Jamie R. Abrams catalogs both the harms of the Socratic method and the deteriorating well-being of modern law students and lawyers, concluding that there is nothing to lose and so much to gain by reimagining Socratic teaching. Recognizing that these traditional classrooms are still necessary sites to fortify and catalyze other innovations and values in legal education, Inclusive Socratic Teaching provides concrete tips and strategies to dismantle the autocratic power and inequality that so often characterize these classrooms. A galvanizing call to action, this hands-on guide equips educators and administrators with an inclusive teaching model that reframes the Socratic classroom around teaching techniques that are student centered, skills centered, client centered, and community centered.

New Women Law Deans

Updated 5-28-24

Once again, Gender & the Law Blog's annual list of New Women Law Deans. We will update as announcements are made.

Women are 15 of 29 (52%) new law deans in 2024. 

Aviva Abramovsky, Idaho (previously Dean, Buffalo)

Marcilynn Burke, Tulane (Dean, Oregon)

Anna Carpenter, Oklahoma (Utah, Prof. & Special Advisor to President)

Brietta Clark, Loyola LA (Interim Dean, Loyola LA)

Camille Davidson, Mitchell Hamline, President & Dean (Dean, Southern Illinois)

Jelani Jefferson Exum, St. John's (Dean, Detroit Mercy)

Twinette Johnson, St. Louis (Dean, District Columbia)

Julia Hill, Wyoming (Vice Dean, Alabama)

Johanna Kalb, U San Francisco (Dean, Idaho)

Leslie Kendrick, Virginia (Prof., Virginia)

Stephanie Lindquist, Washington U, St. Louis (Prof., Arizona State)

Alicia Ouellette, Lewis & Clark (President & Dean, Albany)

LaVonda Reed, Baltimore (Dean, Georgia State).

Jenny Roberts, Hofstra (Prof. & Clinic Director, American)

Franita Tolson, USC (Interim Dean, USC)

 

                                         

Priya Baskaran on Critical Legal Research in Law Clinics

Priya Baskaran has published "Searching for Justice: Incorporating Critical Legal Research into Clinic Seminar" in Volume 30 of the Clinical Law Review. The article concludes:   

The progenitors of CLR — Delgado and Stefancic — reiterate the importance of “reinventing, modifying, flipping, and radically transforming legal doctrines and theories imaginatively” to pursue justice and law reform. Law is a profession that recreates hierarchy and predictability; thus, law reform and justice require “mulling over what an ideal legal world would look like from the client’s perspective.”

 

This type of contextual critical thinking is exactly what clinical legal education seeks to develop. When lawyers focus on the rule and only the rule, they place a specific box around the problem. The problem and potential resolutions, when so narrowly categorized, are limited to the universe of “settled law” and stifle innovative solutions. Such restrictions are in direct opposition to the best interest of the client —who is expecting the lawyer to help engage in creative problem solving and advocacy, rather than simply upholding the status quo and perpetuating harm and injustice. From a metacognition perspective, restrictive and limited construction also harms the students’ intellectual development and capacity. Strict adherence to the rule prevents effective learning for transfer by reinforcing subject matter silos. Students make only surface level connections rather than understanding the underlying structural issues and engaging in applied critical thinking. In contrast, “a conceptual advance that sees old material in a new light” can lead to the type of creative lawyering that is necessary to champion justice. Our current moment desperately calls for wide-ranging, transformative social change. Communities face increasing economic precarity as decades of divestment continue to erode social infrastructure and safety nets. In the wake of this draconian and shameful legal regression that entrenches harmful hegemonies, we cannot train students to merely accept precedent or the myth of a neutral judiciary. Advocating for vulnerable clients will require far more creative and strategic attorneys who are able not only to conceptualize creative arguments, but also to work collaboratively with grassroots groups pushing for greater change through concerted organizing and political mobilization.

 

Training students in CLR equips them with the critical thinking skills and research strategies to navigate the deeply flawed legal systems and imperfect research resources. Despite the challenges, we should find a way to incorporate CLR into clinical pedagogy as an important step in the continued fight against injustice.

Amended Title IX Regulations

The Department of Education published amended Title IX regulations. The agency summarized the key changes in the regulations as including: 

• Define “sex-based harassment” * * *
• Provide and clarify definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
• Clarify a recipient’s required response to sex discrimination . . . in its education program or activity;
• Strengthen a recipient’s obligations to provide prompt and equitable grievance procedures and to take other necessary steps when it receives a complaint * * *; and
• Provide for additional requirements in grievance procedures at postsecondary institutions.
• With regard to discrimination against individuals who are pregnant or parenting, the final
  regulations:
  • Define the terms “pregnancy or related conditions” and “parental status”;
  • Clarify the prohibition on discrimination against students and applicants for admission and employees or applicants for employment on the basis of current, potential, or past pregnancy or related conditions; and
  • Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.* *
• Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and maintaining records;
• Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
• Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
• Clarify a recipient’s obligation to address retaliation.

The 19th News reported on LGBTQ+ advocates' call for President Biden to do more to protect transgender athletes. 

A coalition of equal rights supporters representing over 20 groups —  including LGBTQ+ advocacy groups the Human Rights Campaign, GLSEN and the Trevor Project — issued a joint statement on Friday arguing that the new regulations do too little to protect transgender athletes.

 

“This regulation does not go far enough in making the law’s protections clear for all student athletes,” the statement said. “Currently, 37 percent of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity. As with all students, Title IX protects transgender, nonbinary and intersex student athletes from discriminatory policies, as the Biden administration has already argued in court and a federal appeals court upheld just this week.” 

 

The coalition called on the Biden administration to “finish the job” by leaving no doubt in the regulations that transgender, nonbinary and intersex student-athletes have protections under Title IX. 

 

New Women Law Deans

Once again, Gender & the Law Blog's annual list of New Women Law Deans.

LaVonda Reed, Baltimore (previously Dean at Georgia State).

Learning the Law Through Taylor Swift Cases

ABA J., Swift Justice: Students Learn About the Law Through Taylor Swift Cases

As anyone who pays attention to current events knows all too well, Taylor Swift has become ubiquitous.

She’s touring the world, playing to sold out stadiums on her record-breaking “The Eras Tour.” She’s in movie theaters, showing a version of said tour to enchanted Swifties who either couldn’t see her in person or did and want to relive their best day.

She’s at NFL games, trying to bring good karma for her boyfriend, Travis Kelce, and his team, the Kansas City Chiefs. She’s talked about on cable news and social media, as the political world waits to see if she’ll speak now about who she’s endorsing in the 2024 presidential election.

And in at least two law schools, she’s the subject of a class available to students wanting to gain practical knowledge about the law by studying her various legal entanglements and how she emerged stronger.

At the University of Miami School of Law, there was “Intellectual Property Law Through the Lens of Taylor Swift,” a seven-week course taught by Vivek Jayaram, founder of Jayaram Law and co-director of the Arts Law Track in Miami Law’s Entertainment, Arts and Sports Law LL.M program.

Jayaram, who has practiced intellectual property and corporate law for over 20 years, came up with the idea for the class at lunch one day with Gregory Levy, associate dean of Miami Law. Jayaram had just read an article about Swift’s lawsuit with Evermore Park, a theme park in Utah that sued her for trademark infringement after she released an album titled “Evermore” in December 2020.

There were some other lawsuits and legal disputes he had read about involving Swift, including a well-publicized fight starting in 2019 over ownership of her old master recordings that led to her re-recording her back catalogue. There also was a 2014 battle with Spotify over streaming royalties and 2015 deals with JD.com and Alibaba to combat Chinese counterfeiting of her merchandise.

“I said to Greg: ‘I bet Swifties know more about IP law than a lot of lawyers,’” recalls Jayaram, whose favorite Swift album is 1989. “That initiated a bit of a conversation about centering an IP class around her.”

The inaugural class, which met in the spring of 2023, had about 25-30 students. Jayaram says his end game was to use Swift as a means of exploring interesting issues in IP law. He adds that while she was hardly the first artist to experience copyright and trademark issues, she has dealt with them in interesting, innovative ways that have allowed her to experience greater success.

“She’s not the first one who has re-recorded her old songs, but she’s really the only one who has been really successful at it,” says Jayaram, pointing out artists as diverse as The Everly Brothers, Journey and Def Leppard have tried it, with significantly less commercially successful results. “It’s very unusual to do this and have it shoot up to the top of the charts.”

Another law professor had a similar epiphany—this time, after speaking with some of his students who were excited about going to various shows on her recent “The Eras Tour.” “I thought that she could work as a class,” says Sean Kammer, an environmental and torts law professor at University of South Dakota Knudson School of Law. “I got to work and started from the point of view of what are the ways we can use Taylor Swift and her music to learn about the law?”

Kammer’s class, called “The Taylor Swift Effect,” does not just focus on IP law—instead, it looks at various issues, including how Swift’s songwriting and storytelling can help lawyers become better advocates.

“We look at questions that are more theoretical, like how we experience music and how we derive very deep meanings from these pieces,” says Kammer, whose favorite Swift song is “All Too Well” (10 Minute Version). “At the end of the class, we look at what we can learn as creators of legal arguments, to tell the stories we need to tell, by taking lessons from how a songwriter writes a song in terms of organization, style and narrative.”

Other undergraduate and graduate schools have opened their course catalogs to the multi-Grammy winner and recently certified billionaire. Stanford University, Arizona State, Rice University, the University of California at Berkeley and others have introduced classes examining a range of issues, including her lyrical and musical style, the psychology of her music and relationships, and business-oriented courses examining her as an entrepreneur.

Solidifying Students' Rights to Gender Expression, A Response to Dara Purvis, Transgender Students and the First Amendment

Scott Skinner-Thompson, Solidifying Students' Right to Gender Expression, 104 Boston U. L. Rev.  (2024)

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.