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PANC Spring Conference�April 30, 2021��Equity & Diversity: Honorific Titles, Pronouns, Cultural Responsiveness and Gender Identity

Katie Cornetto

Schwartz & Shaw, P.L.L.C

19 W Hargett Street Suite 1000

Raleigh, NC 27601

919-821-9011

kcornetto@schwartz-shaw.com

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Overview

Introduction
Gender Discrimination and Women’s Rights
Transgender Titles, Pronouns, & Terms
Transgender Rights (and Wrongs)
Hypotheticals
Key Points: Conversation, Culture, Courage and Consultation

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Gender Discrimination and Women’s Rights

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Gender

What is it?

Does it matter?

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Timeline of Women’s Rights �(or lack thereof)

1769 – American colonies based on English Common Law which stated: “By marriage, the husband and wife are one person in the law. The very being and legal existence of the woman is suspended during the marriage or at least is incorporated into that of her husband under whose wing and protection she performs everything.”
1777 – All states pass laws which take away women’s right to vote.
1839 – The first state (Mississippi) grants women the right to hold property in their own name – with the husband’s consent.
1848 – Seneca Falls, NY – “Declaration of Sentiments” signed by men and women, pleads for end of discrimination against women.
1855 – A case is decided that declares a black woman to be property and no right to defend herself against a master’s rape.
1866 – The 14^th Amendment is passed by Congress. For the first time, “citizens” and “voters” as used in the Constitution are defined as “male.”

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Continued Timeline…

1873 – The U.S. Supreme Court rules that a state can prohibit a married woman from practicing law.
1875 – The U.S. Supreme Court rules that a state can prohibit a woman from voting.
1900 – By this year, every state has passed legislation granting married women some control over their property and earnings.
1918 – Margaret Sanger wins her lawsuit in New York to allow doctors to advise married patients about birth control.
1920 – 19^th Amendment is ratified, ensuring women the right to vote. (NC ratified in 1971).
1938 – Fair Labor Standards Act established minimum wage without regard to sex.
1963 – Equal Pay Act is passed by Congress, promising equitable wages for the same work, regardless of race, color, religion, national origin, or sex.

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Continued Timeline…

1964 – Title VII of the Civil Rights Act of 1964, prohibits discrimination in employment based upon race, color, religion, national origin, or sex.
1969 – Seventh Circuit rules that women meeting physical requirements can work in many jobs that had previously been for men only.
1969 – California adopts the first “no fault” divorce law, allowing divorce by mutual consent.
1971 – U.S. Supreme Court outlaws the practice of private employers refusing to hire women with pre- school children.
1971 – Congress passes Title IX prohibiting sex discrimination in education programs that receive federal funding.
1973 – Roe v. Wade – U.S. Supreme Court declares women’s right to terminate an early pregnancy.
1974 – U.S. Supreme Court rules it is illegal to force pregnant women to take maternity leave.

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Continued Timeline…

1978 – Pregnancy Discrimination Act – bans employment discrimination against pregnant women.
1981 – Sandra Day O’Connor appointed as first woman Supreme Court Justice.
1984 – U.S Supreme Court rules that organizations such as Jaycees, Kiwanis, and Rotary, may not discriminate against women in membership rules.
1986 – U.S. Supreme Court rules that “discrimination” prohibited by Title VII includes harassment, hostile work environment, etc.
1996 – U.S. Supreme Court rules that male-only admissions policies of Virginia Military Institute violate 14^th Amendment.
2007 – First female Speaker of the House.
2020 – First female Vice-President of the United States.

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Gender Discrimination Laws

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Federal Laws Addressing Sex Discrimination

Title VII

Title IX

Fair Housing Act

Equal Pay Act

Pregnancy Discrimination Act

Equal Credit Opportunity Act

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NC Anti-Discrimination Laws

N.C.G.S. 126-16 �Prohibits discrimination by public employers

N.C.G.S. 143-422.2 �Equal Employment Practices Act – only provides that it is the “public policy” of the State to protect the right of employees to obtain employment without discrimination. No mandate or enforcement provided.

N.C.G.S. 115C-335.5

Local boards may adopt sexual harassment policies

N.C.G.S. 115C-407.15 et seq �Prohibits bullying and harassment in public schools & requires local board policies

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North Carolina Laws

N.C. Gen. Stat. § 126-16

All State agencies, departments, and institutions and all local political subdivisions of North Carolina shall give equal opportunity for employment and compensation, without regard to race, religion, color, national origin, sex, age, disability, or genetic information to all persons otherwise qualified.

Note: This applies to public employers only.

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North Carolina Laws

N.C. Gen. Stat. § 115C-407.15��(b) No student or school employee shall be subjected to bullying or harassing behavior by school employees or students�

N.C. Gen. Stat. § 115C-407.16

Policy against bullying or harassing behavior applies to students and school employees and must include: definition of bullying/harassment, description of behavior, consequences, reporting procedures, investigation procedures, no retaliation for reporting, and a communication plan for the policy��

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North Carolina Laws

�

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N.C. Gen. Stat. § 115C-407.15(a)(2)

�“Bullying or harassing behavior” includes acts perceived as being motivated by characteristics such as race, color, religion, ancestry, national origin, gender, socioeconomic status, academic status, gender identity, physical appearance, sexual orientation, or . . . disability, or by association with a person who has or is perceived to have one or more of these characteristics.

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North Carolina Laws

�

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NOTE:

NC still has a law on the books, and a constitutional provision, banning same sex marriages.��Those provisions were held unconstitutional by a Federal judge in 2014. ��Finally, the decision in the U.S. Supreme Court case Obergefell in 2015 completely resolved the legal issue. ��

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Title VII, Civil Rights Act of 1964

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Employer practices

It shall be unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect their status as an employee, because of such individual’s race, color, religion, sex, or national origin.

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Title IX

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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Applies in sports, admissions, employment, as well as to sexual harassment.

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Important Sex Discrimination Cases

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Meritor Savings Bank v. Vinson (1986)

U.S. Supreme Court holds that sexual harassment resulting in hostile work environment prohibited as disparate treatment under Title VII

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Important Sex Discrimination Cases (cont.)

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Price Waterhouse v. Hopkins (1989)

U.S. Supreme Court holds that sexual stereotyping can be a form of prohibited sex discrimination

“[G]ender must be irrelevant to employment decisions”

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Important Sex Discrimination Cases (cont.)

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Both cases important for laying groundwork for later cases involving transgender, sexual orientation, and discrimination.

Meritor – involves unwanted verbal and physical harassment

Price Waterhouse – involves the failure to promote a female employee based upon her failure to exhibit stereotypical characteristics (dress, hair, behavior).

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Other Important Cases

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Gerdom v. Continental Airlines, Inc.

(9th Circuit Court of Appeals) (1983)

Airline had weight restrictions for female “flight hostesses” but not for males in similar positions. Not legal under Title VII.

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Other Important Cases

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Carroll v. Talman Fed. Sav. & Loan Assoc.

(7th Circuit Court of Appeals) (1980)

Females required to wear uniforms, but males could wear business suits.

Not legal under Title VII.

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Cases involving women under Title VII become important in anticipating and forecasting legal interpretations in the area of transgender employees.

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Women - Honorific Titles

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MISS

MRS.

MS.

All used in England in 17^th and 18^th centuries and indicated “mistress”

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19th Century

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Exclusively used Mrs. and Miss, both associated with marital status

Ms (or Ms.) revived during the 1960’s and the Feminist movement

20th Century

Women - Honorific Titles (cont.)

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Women -Pronouns

Traditional : She/Her/Hers
Historical (14^th Century) : They/ Them/ Theirs

Were all used for singular pronouns

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Women – Pronouns

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18^th Century

They/Them/Theirs fell out of favor

He/Him/His became used for “neutral” references

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By the early 21^st Century, singular “They” becomes acceptable again as we move toward gender-neutral language.�

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Other Terms That Are Changing (or Need to Change):

Chairman Chairperson�
Fireman Fire Fighter �
Policeman Policy Officer�
Mankind Humankind

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Transgender Titles, Pronouns & Terms

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The sex discrimination journey does not end with women . . .a new journey begins with transgender individuals including new terms and definitions� �A 2016 UCLA study estimated that there are 1.4 million transgender adults in the U.S.�

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Transgender Titles, Pronouns, & Terms

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Terms to Know

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Sex:

Biological traits; individuals are assigned sex at birth

Gender:

Cultural meanings attached to being masculine or feminine

Sexual Orientation:

Sexual attraction

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Gender Identity

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Personal sense of one’s own gender;
May correlate with person’s assigned sex at birth or not;
Cannot be assumed based on appearance, anatomy, or social norms

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Gender Binary

Classification of gender into two distinct, opposite forms: masculine and feminine

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Cisgender

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A person who exclusively identifies with either male or female

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Transgender

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A person whose gender identity does not match the gender (sex) assigned at birth

Ryland Whittington: Born female. Transitioned at around age 5.

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Gender Non-Binary

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A person whose gender identity does not fit within socially defined categories of male or female

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Agender

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A person who does not identify or does not experience having a gender.

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BUT…

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There are many individuals who do not see themselves as strictly male or female; they might identify as either, both, or neither. They may identify as a gender that is different from their sex assigned at birth.

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Gender Expression

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The way a person expresses gender through behavior, mannerisms, interests, appearance.

Expression may or may not align with birth sex

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Social Influences and Expectations

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Home
School
Church
Television
Movies
Toys
Sports

The mall
Clothing
Workplace
Careers
Language

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Most children are aware of gender identity by age 3

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Transgender Rights (and Wrongs)

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Transgender in the News

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Caitlyn Jenner

Launches bid for California Governor

4/24/2021

Rachel Levine

U.S. Secretary Health and Human Services 3/24/2021

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Let’s Meet Some Transgender Individuals

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Now Let’s Meet Some Transgender Teachers

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Quotes from Some of Those Teachers:

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“The one thing I wish people knew about being a T/GNC educator is how remarkable it feels to see my students perceiving vulnerability as strength, and then take action to educate their community.”

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“At the end of the day, we care. We care about your children, we care about the education system, we care about the future of our society, and that is why we chose to go into this profession.”

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Quotes from Teachers: (cont.)

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“I want my students, and any student in my school to know that gender norms and stereotypes are not something we need to continue to perpetuate. I want the students in my school to know they have someone they can talk to if they do not have a safe adult at home or in the community to discuss their feelings about gender. I also want my students to know that it is necessary to respect a person’s gender identity and pronouns. I know I am not the only trans person that my students will meet and interact with in their lifetime. I am trying to prepare them for a diverse world where they can live with compassion and authenticity. I put my safety at risk every single day because I believe the end result will be so, so worth it.”

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Quotes from Teachers: (cont.)

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“The one thing I wish people knew about me is that my identity as an educator is the most important one I have.”

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Quotes from Teachers: (cont.)

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All quotes were taken from surveys of actual transgender teachers compiled by NPR, which did, in 2018, a series on “Transgender Teachers.” ��Almost all indicated that there was much fear associated with being transgender but their commitment to children helped them overcome that fear.

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Quotes from Teachers: (cont.)

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Today’s transgender teachers are serving as role models to their students��Transgender teachers, alongside their students, are pushing colleagues, school administrators and elected officials to improve awareness of gender issues.��Teaching is “one of the most gendered professions”��Form networks to prevent isolation on social media (One example Transgender Educators Network)��

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TRANS EDUCATOR VIDEO��“The thing that I want school leaders to keep in mind is regardless of their intentions, there’s no way they’re the experts on how to handle this…”�--Sam Long, Trans Educator�

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FIVE BEST PRACTICES��1. Do Your Homework � Education and Research Leads to Understanding �2. Critically Examine Biases� Unconscious bias in Job Descriptions, Evaluation Instruments, Conversations and Communications�3. Be Proactive� Engaging stakeholders for input, education and action� Correct Mistakes�4. Share the Work� Collaboration among staff, administration, board and school community�5. Make Policies for Students/Staff� Written policies and practices will set expectations, support respectful and a safe working and learning environment��

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Legally Speaking, Where Are We Now?

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The Bathroom Debate is over.

Gavin Grimm

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Grimm v. Gloucester School Board

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High School student Gavin Grimm came out as transgender boy.
School board in Virginia adopted policy directing him to use an “alternative” bathroom.
Gavin had hormone therapy, underwent some gender affirmation surgery, obtained a new ID card with male sex designation, and obtained a new, conforming birth certificate.
Even after graduation, the school system refused to amend his transcript to show he was male.�

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Grimm v. Gloucester School Board (cont.)

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Lawsuit followed. Four years including a trip to the U.S. Supreme Court and back.

The U.S. District Court ruled in his favor and the Fourth Circuit affirmed the ruling in August 2020. �
While his case was pending, two important cases were being decided by the United States Supreme Court that would shape the law moving forward. ��

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Bostock v. Clayton County

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U.S. Supreme Court (decided June 15, 2020)

Held: Title VII protects employees against discrimination based on sexual orientation and gender identity

Companion case:

R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC,

(U.S. Supreme Court – June 15, 2020)

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Cases Leading Up to Bostock

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Obergefell v. Hodges (2015)

Under Due Process Clause, same-sex couples may not be deprived of basic, fundamental right to marry

Grimm v. Gloucester School Board

Violations of constitution and Title IX due to bathroom policy prohibiting transgender student from using bathroom aligned with gender identity.

3. Several cases dating back to 2004 held it a violation of Title VII to terminate an employee based on gender transition.

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Three Types of Cases

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Lawsuits brought by an individual (student or employee) claiming a violation of their rights under U.S. Constitution and Federal Laws like Title VII and Title IX.

Lawsuits brought by others affected by a school or employment policy, claiming that THEIR rights have been violated by the rights extended to transgender individuals.�
Lawsuits brought by employees disciplined or terminated, not for being transgender, but for refusing to follow protocols respecting transgenders in the workplace or the school, e.g., failing to use proper pronouns or names when referring to transgender individuals.

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Lawsuits by “Others”

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Cruzan v. Special School Dist. #1 (8^th Cir. 2002)

Policy of allowing transgender co-worker to use women’s (faculty) restroom does not amount to discrimination, sexual harassment, or hostile environment of non-transgender employee

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Parents for Privacy v. Barr (9^th Cir. February 2020)

Lawsuit by parents and students alleging bathroom policy allowing transgender students to use restrooms, locker rooms, and showers that matched their gender identity violated the following:�

fundamental right to privacy
Title IX (created harassment and fear based on sex)
fundamental right of parents to direct the care and education of their children
First Amendment right to free exercise of religion (Parents’ and students’ right to their religious beliefs around modesty)

Lawsuits by “Others” (cont.)

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Lawsuits by “Others” (cont.)

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Parents for Privacy v. Barr (cont.)

The 9^th Circuit rejected all claims and upheld the bathroom policy.

“There is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.”

In other words: There is no fundamental right not to share a bathroom with transgender students.

Court also held that parents do not have some absolute right to direct the policies of the school nor do their religious beliefs control the authority of the school board to adopt neutral policies that serve a legitimate purpose.

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Lawsuits Involving Employees Who Disobey

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Kluge v. Brownsburg Comm. School Corp. (U.S. District Ct. Indiana January 2020)

Former music teacher claims he was forced to resign in violation of his First Amendment Free Speech and Free Exercise rights for failing to address transgender students by their preferred names and pronouns

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Kluge v. Brownsburg Comm. School Corp. (cont.) ��The District Court held that the teacher had no claims to Free Speech or Free Exercise Clause in his failure to follow the school’s policy regarding addressing transgender students.

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Lawsuits Involving Employees Who Disobey (cont.)

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Back to Bostock (cont.)

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“An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

--Justice Gorsuch

“An individual’s homosexuality or transgender status is not relevant to employment decisions.”

U.S. Supreme Court held terminations violated Title VII.

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Harris Funeral Homes (companion case to Bostock) involved transgender employee who was terminated as the employee was starting to transition. ��Violation of Title VII - Discrimination based on sex�

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Back to Bostock (cont.)

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Bottom Line: ��Law is settled. ��An employer may not, under Title VII, discriminate against an employee based upon sexual orientation OR transgender status. �Remember: This includes discrimination in the “terms and conditions” of employment and also includes sexual stereotyping.��

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Back to Bostock (cont.)

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So…��Bathrooms, �dress codes and expectations, pronouns, and amending official documents all reflect gender identity

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Back to Gavin Grimm

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After travelling to the U.S. Supreme Court and back down to the Federal District Court, the case was back in the Fourth Circuit Court of Appeals, which handed down a final decision in August 2020, following the Supreme Court decision in Bostock.

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Back to Gavin Grimm (cont.)

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Important quotes from the 4^th Circuit Court:

“Many of us carry heavy baggage into any discussion of gender so we start by unloading that baggage and developing a fact-based understanding of what it means to be transgender. . . .”

“Being transgender is natural and is not a choice.”

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Back to Gavin Grimm (cont.)

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“It is not a psychiatric condition and implies no impairment in judgment, stability, [or] reliability . . . .”

“Gender identity is generally established between the ages of three and four years old.”

Here “the Board’s privacy argument is based upon sheer conjecture and abstraction.”

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Back to Gavin Grimm (cont.)

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The Court applied Bostock, which dealt with Title VII, to the sex discrimination here under Title IX.

Judge Wynn’s concurring opinion compares this bathroom segregation to racial segregation:

The board’s action here “is indistinguishable from the sort of separate- but-equal treatment that is anathema under our jurisprudence.”

The result is to label students “as unfit for equal participation in our society.”

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Gavin Grimm (cont.)

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“I see little distinction between the message sent to black children denied equal treatment in education under the doctrine of “separate but equal” and transgender children relegated to the “alternative appropriate private facility[ies]’ provided [here].”

“The ‘transgender predator’ myth echoes similar arguments used to justify segregation along racial lines.”

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The Fourth Circuit opinion concluded with the following: ��“The proudest moments of the federal judiciary, [are] when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past . . . . How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward.”

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Back to Gavin Grimm (cont.)

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President Joe Biden’s Executive Order �January 20, 2021

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“Preventing and Combating Discrimination Based on Gender Identity and Sexual Orientation.”

The order is based on Bostock and extends the sex discrimination prohibition to other laws, including Title IX.

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NOW WHAT???

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Key Points: �Conversation, Culture, Courage and Consultation

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Key Points�A. Learn the Language

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Terms and definitions such as “transgender,” “cisgender,” “non-binary,” “sexual orientation,” “intersex,” “gender non-conforming,” “agender,” “transitioning,” and “gender dysphoria.”

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2) Terms NOT to Use:� “Gender Identity Disorder”� “Transvestite”� “Tranny or Trannie”��3) Do not use a “Deadname” � (the birthname if the person has chosen to change it)��

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4) Pronouns�� Important: Chosen pronouns may or may not match person’s gender identity or sex�� He, his, him, himself�� She, her, hers, herself�� They, their, theirs, themselves�� ze (“zee”), hir, hirs, hirself (“here”; “hereself”)�� ze (“zee”), zir, zirs, zirself (“zere”; “zereself”)��

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5) Stop using gender-specific terms:�� E.g.,� Chairman – use “Chair”�� Policeman – use “Police Officer”�� Mankind – use “Humankind”��

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6) Stop using gender-specific pronouns:�� Superintendent – “he” – use “they”�� Teacher – “she” – use “they”�� Nurse – “she” – use “they”�� Doctor – “he” – use “they”��

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7) Consider Additional Options for Honorific Titles� � a. “Mx.” is a gender-neutral honorific title for individuals who do not identify by gender. This alternative was added to the Merriam-Webster Dictionary in 2016 and has become increasingly used/accepted in the UK and elsewhere�� b. American Journal of Medicine (2019) supports using “RP” as an honorific title which stands for “Respected Person.”

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Key Points �B. Review Policies

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Amend, if necessary:

Discrimination and Harassment Policies

Title IX Policies

Bullying and Harassment Policies

Behavior Policies

Assaults and Threats Policies

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Add Policies if Necessary:��

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Bathrooms and locker rooms

Dress Codes

Sports and extracurricular participation

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��Key Points �C. Review Forms��

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Do your forms need to request gender?

Can you add “other” to the form?

Are there additional modifications to the form to remove masculine/feminine references?

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Speaking of Forms

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Birth Certificates – NC Gen. Stat. §130 A–118(a)

Must submit written request based on sex reassignment surgery, together with notarized statement from physician who performed the surgery or who has examined the person and can certify surgery

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Driver’s License

Surrender current license card
Submit one of the following:
Birth Certificate
Court order
Valid U.S. passport
Sex designation form

c. Pay applicable fees

d. Have new photograph taken

Speaking of Forms (cont.)

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��Note: �Sex designation form is available online��Must be signed and certified by a health provider or social service provider:��

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Physician, psychiatrist, physician’s assistant

Licensed therapist, counselor, or psychologist

Case worker or social worker

Speaking of Forms (cont.)

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EEO-1 Report

This form only allows employee to indicate male or female.

There is no “other” category.

Guidance allows employer to account for nonbinary status in “Additional Employee Data”

Speaking of Forms (cont.)

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The Bostock decision may help change the practice of categorizing gender as “either-or,” but must await Rules or guidance from EEOC.��Meanwhile, continue to review and assess the need for gender categories on local documents, and make necessary changes.

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Speaking of Forms (cont.)

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