Transgenderism—the perception some persons have that their gender identities, or the outward expressions of their gender, are not those traditionally associated with their birth sex—is now a hot topic in national discussions about protection against discrimination and harassment.

Over the past 10 years, nearly 60 colleges and universities (including half the Ivy League, four universities in the Big Ten, and the entire University of California system) have altered their nondiscrimination policies so as to expressly protect gender identity and expression.

Many large employers have done the same; among them are IBM, Xerox, Eastman Kodak, J.P. Morgan Bank, and the Pacific Gas and Electric Corp. Eight states and more than 80 cities also have passed legislation barring discrimination on the basis of gender identity and expression.

On April 7, the University’s Senate Assembly, by a lopsided vote (27 to 3, with four abstentions), passed a resolution calling on the regents and the administration to implement similar express protective language.

The resolution has its origins in the April, 2004 report of the Provost’s Task Force on the campus climate for transgender, bisexual, lesbian, and gay faculty, staff, and students. Among other things, this report forcefully advised the regents to amend Bylaw 14.06 so as to provide nondiscrimination and equal opportunity for all persons regardless of “gender identity,” and it also asked the administration to adopt Standard Practice Guides expanding protections for gender identity. The University’s executive officers approved the report recommendations in September 2004.

The regents, however, did not make the recommended bylaw change. Instead, in February 2005, Provost Paul N. Courant sent an e-mail message to the entire U-M community announcing that the University would henceforth “interpret and apply the prohibition against sex discrimination U 00E2U 0080U 00A6 to include discrimination based on gender identity and gender expression.”

The provost’s e-mail was subsequently put into operation in many University nondiscrimination policies by placing an asterisk beside the word “sex” so as to indicate that this word “includes discrimination based on gender identity and gender expression.”

But the provost’s compromise has proven to be unsatisfactory in numerous ways. Most notably, the implementation of the “asterisk policy” has been highly uneven. For example, the Faculty Handbook has been changed, but the Staff Handbook has not. The Application for Employment at the University retains the old language, as does the nondiscrimination policy statement of the Student Employment Office, and so on. The asterisk is just too cumbersome a device to enforce with uniformity.

Further, the regents’ failure to amend Bylaw 14.06 has resulted in a lack of leadership regarding other crucial policy initiatives. For example, although the language of the Standard Practice Guide on Non-Discrimination has been changed to include gender identity and expression, otherwise there have been, as of yet, no implementing Standard Practice Guides. Similarly, the provost’s subcommittee recommendations on facilitating name changes and on education, although they have been prominently posted on the provost’s Web site for nearly a year, have evidently still not been funded.

Worrisome here is a pattern strikingly similar to what happened 20 years ago when the administration, facing regental resistance, attempted to implement protections for sexual orientation without obtaining the leadership that a bylaw change would have provided. Not only was this attempt generally ineffective, it also created an atmosphere of bitterness and distrust that did not dissipate even when the regents finally changed the bylaw in 1993.

A handful of other educational institutions have imitated Michigan in trying to protect gender identity and expression through an interpretation of the word “sex,” but they too have found this course unsatisfactory. An example is Vassar College, which in April of this year decided to abandon the interpretation and provide protection expressly.

This University’s faculty has now joined the Michigan Student Assembly in expressing its own clear preference for express protections. In the end, the faculty saw no good reason why the University of Michigan should continue to distance itself from what is clearly emerging as the dominant pattern in nondiscrimination policies.

Bruce W. Frier, a SACUA member, chaired the Provost’s Task Force on the Campus Climate for Transgender, Bisexual, Lesbian, and Gay (TBLG) Faculty, Staff, and Students (2003-2004).

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