AALS Statement of Good Practices on Gender Identity and Gender Expression
In 2016, AALS added gender identity and gender expression to the list of bases on which member schools are required to protect students, faculty and staff from discrimination. See Bylaw Section 6-3. Because this is a developing area of antidiscrimination law, the AALS offers this Statement of Good Practices, not as a disciplinary code, but to provide guidance to our member schools.
At the most general level, deans and other administrative leaders should set the tone regarding the importance of respecting the gender identity and expression of members of the law school community. They might do so, for example, by framing the prohibition against discrimination on the bases of gender identity and gender expression as part of a broader institutional commitment to achieve equity, diversity, and inclusion for all members of the law school community. Law schools can also shape the tone of their institutions by being clear about this gender identity and gender expression antidiscrimination mandate and by being transparent about the processes in place, both at the school and, when appropriate, campus-wide level, to respond to both forms of discrimination.
With respect to gender identity specifically, law schools should be mindful that members of the community may go through gender transition prior or subsequent to joining the law school community. Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.
Because a person’s gender identity may be different from or the same as the person’s sex assigned at birth, requiring members of the law school community to provide legal or medical evidence in order to treat them in accordance with their gender identity, or refusing to call people by the name and pronouns consistent with their gender identity, potentially burdens people’s freedom to choose and define their gender. Schools should be thoughtful when counseling or directing students about acceptable dress and appearance, particularly when grades or professional opportunities are involved. In situations where school staff or administrators are required by law to use or to report a transgender student’s legal name or gender, such as for purposes of sitting for the bar examination, school staff and administrators should adopt practices to avoid the inadvertent disclosure of such confidential information.
Prohibiting members of the law school community from using restrooms, locker rooms, or other sex-segregated facilities that are consistent with their gender identity, or forcing them to use separate facilities, may also burden a person’s freedom to define or choose their gender. To accommodate transgender members of the community, law schools may consider designating at least some facilities single-use facilities for everyone.
With respect to gender expression specifically, law schools should be mindful that people express their gender through personal appearance, mannerisms, and other social cues. Some people’s gender expression may not conform to societal expectations based on their sex assigned at birth. For instance, a person who identifies as a woman who has a more androgynous or masculine gender expression could be considered gender non-conforming. Law schools should not adopt policies or practices that are based on the view that a person’s expressions of gender (for example, as masculine or feminine) must align with their gender identity or their sex assigned at birth (for example, as a man/male or a woman/female).
Protecting people from discrimination on the basis of gender identity and gender expression includes respecting the choices they make about how to define and express their gender, respecting people’s privacy concerning their transgender status, including details relating to gender transition, not excluding anyone from law school opportunities, activities, or events because of their gender identity or gender expression, and, upon learning that a person is being discriminated against—including being harassed or bullied—because of their gender identity or expression, taking action to stop and remediate the discriminatory conduct.
The AALS has revised its Bylaws to include gender identity and gender expression to reflect changes in societal norms and the law, and has published this Statement of Good Practices to assist member schools in meeting their commitment to create and maintain inclusive and non-discriminatory institutional environments.