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Colleges and universities are legally required to attempt to prevent and redress sexual violations on campus. Neo-institutional theory suggests that the implementation of law by compliance professionals rarely achieves law’s goals. It is critical in claims-based systems that those who are potential claimants understand the law. This article demonstrates that (a) intended subjects of the law (colleges and universities) interpret and frame the law in very similar ways; (b) resultant policies are complex and difficult to navigate; and (c) university undergraduates in an experimental setting are not able to comprehend the Title IX policies designed to protect them. These findings suggest that current implementations of Title IX policies leave them structurally ineffective to combat sexual assaults on campus. 

This Article explores the intersection of First Amendment claims (religious and speech) and the social science research about the harms of misgendering transgender people in the classroom and beyond. Using medical and social science data about the harms of misgendering transgender and non-binary people, we show that misgendering dramatically and negatively impacts transgender students in the classroom and in society. We show that the harms are not individualized but are collective; they derive from being part of a stigmatized minority population. After demonstrating the harms of misgendering, we consider the First Amendment claims that seek to offer constitutional protection to misgendering. We argue that on balance, the First Amendment claims of free speech, academic freedom, and freedom of religion provide no basis on which professors should be allowed to misgender trans students in the classroom. As we show, debates about the First Amendment, when analyzed through a lens that considers social hierarchy, fail to provide a constitutional mandate for speakers or religious practitioners to engage in misgendering. Rather, we point out that the law does not provide a consistent principle to determine what is protected speech, but instead privileges the claims of already privileged groups, in this case white evangelical Christians. Given the troubled history of First Amendment law that purports to be “neutral” but protects privileged social statuses, it is disingenuous and constitutionally suspect to allow a First Amendment claim to cover misgendering students in the classroom. We argue that transgender students should be protected by their institutions from faculty members who prefer to stubbornly misgender students in the classroom. Even assuming for the sake of argument that misgendering is “protected” speech, professors who choose to misgender are intentionally harming their students, a breach of professional norms and most schools’ policies. 

Greek life in American colleges and universities is characterized by white hetero-masculine dominance. A large scholarship has documented Greek life’s association with women’s sexual violence, yet much less is known about how men—who are ostensibly privileged in these settings—experience sexual harassment and assault. Using 15 interviews with fraternity members attending an elite, midwestern university, we examine men’s experiences of intra-fraternal sexual violence. We describe fraternity members creating and deploying a white hetero-masculine discourse of “brotherhood” that institutionalizes intra-fraternal sexual violence, makes it illegible, and gives its perpetrators impunity. We also show how the brotherhood discourse differentially deploys resources and power to fraternity brothers based on their intersectional location and relationship to intra-fraternal sexual violence. Future applications of the brotherhood discourse in fraternities and other institutional contexts can help us better understand how such organizations reinscribe intersectional power hierarchies.