What Really Happened at Roanoke College
On anti-transgender speech, sex-based discrimination, and 'hot dog' t-shirts
Earlier this week, Virginia Attorney General Jason Miyares held a press conference and released a report—well, his office didn’t actually release it, but rather ICONS (an anti-transgender women’s sports advocacy group) did—detailing his office’s findings that Roanoke College unlawfully discriminated against cisgender swimmers on the Roanoke College swim team.
To be clear, the Attorney General’s office did not find that Roanoke College barred cisgender swimmers from participating in any athletic activities or denied them any athletic opportunities. Neither did the office find that Roanoke College created a hostile environment for the cisgender swimmers. Rather, the office only found sufficient evidence that a transgender swimmer had access to some resources and privileges that her cisgender teammates did not, and that some cisgender swimmers later experienced retaliation for speaking out about their claims of sex-based discrimination. In other words, the Attorney General’s findings are not really about the charged topic of trans athletes in women’s sports, but rather whether college students have the right to express anti-transgender views that directly target and harm one of their classmates, and whether it is illegal for an institution such as Roanoke College to offer unique resources and privileges to a targeted transgender student and to retaliate against cisgender students who publicly share their anti-transgender viewpoints.
So let’s look at some of the cisgender students’ behaviors in question:
according to reporting in The Daily Mail, prior to October 5, 2023, some cisgender athletes on the swim team expressed to a college official their apprehensions about seeing their transgender teammate wearing a women’s swimsuit. (The Attorney General’s report also highlights the swimmers’ concerns about witnessing their classmate’s body in a swimsuit.) There were also face-to-face meetings in which cisgender swimmers shared a variety of concerns directly with the transgender student. The cisgender students also took an online poll about whether they wanted to let the transgender swimmer on their team. Some cisgender swimmers were also instructed by a college official to write a letter to the transgender swimmer expressing their concerns. In all of these incidents, the transgender student-athlete was singled out and treated differently because of her membership in a protected class (i.e. gender identity), and in at least some instances, confronted with anti-transgender animus, particularly regarding her bodily appearance or bodily characteristics. Under Roanoke College’s own Bias, Harassment, and Discrimination Policy, these acts—including persistent remarks about a student’s appearance, and differential treatment based on membership in a protected category (i.e. gender identity)—constitute prohibited harassment and discrimination under college policies.
On October 5, 2023, a press conference was held at the Hotel Roanoke, in which multiple speakers, including national anti-transgender advocates and some of the students themselves, engaged in anti-transgender speech, including comments misgendering the transgender student, referring to her as “male” and as a “man.” Some of the outside speakers also commented on the student’s bodily characteristics. In this event, the students and their parents, alongside national anti-transgender agitators, directed their comments against a classmate based on her membership in a protected category (i.e. gender identity).
Over the remainder of the 2023-2024 school year, students and their parents continued to make comments directed against this particular classmate and particularly comments about her bodily appearance, even though Roanoke College’s policies prohibit persistent “comments about a person’s appearance” and prohibit singling out a student based on her membership in a protected class. For example, one cisgender student’s mother testified on Capitol Hill in Washington, DC about her daughter’s disgust at having to see her transgender classmate’s bodily form, saying “I don’t want to have to look at an intact man in a girls suit at practice.” This parent expressed that her daughter had engaged in vomiting over the thought of having to swim alongside her transgender classmate. The Attorney General’s report also concludes that one swimmer “frequently vomited,” and “others vomited,” too.
On November 2, 2024, several cisgender swimmers took the stage at a political rally for then-presidential candidate Donald Trump in Salem, Virginia. The students wore t-shirts with the slogan “Keep [hot dog picture] out of women’s sports.” The hot dog on the t-shirts symbolically represents a penis. In this way, the students engaged in speech again that directly targeted the bodily appearance of a transgender classmate, making crude and derogatory comments about her bodily characteristics, and singling her out for discrimination.
A t-shirt worn by Roanoke College student-athletes on the stage at a campaign rally in Salem, Virginia, on November 2, 2024. As sold and marketed by the Independent Women’s Forum.
Virginia Attorney General Miyares’ claim that Roanoke College violated the Virginia Human Rights Act in retaliating against the cisgender students is interesting because the Virginia Human Rights Act also explicitly prohibits discrimination on the basis of gender identity. So while I have commented above on instances in which the cisgender students’ behaviors likely violated the college’s policies, and should have led to an internal investigation and possible suspension, expulsion, or other penalties, it is also relevant to note that, per the Attorney General’s own report, that when an institution fails to stop bullying and harassment against a student based on that student’s membership in a protected class, the college can itself be held liable for violating the Virginia Human Rights Act.
So, while the cisgender swimmers claim that they were denied certain privileges or resources based on sex discrimination, one could reasonably assume that the transgender student could also bring a claim of having been denied educational opportunities based on her membership in a protected class (i.e. gender identity). For example, she was actually denied the ability to participate in a specific athletic program (which the cisgender students were not prohibited from), and she was unfairly singled out for persistent sex-based harassment (which the cisgender students were not. And in the instances where cisgender students did face harassment, it was not based on their membership in a protected class [i.e. their sex] but rather because they had engaged in anti-transgender speech.)
It is clear that Virginia law should also protect the transgender student against blatant acts of discrimination and harassment based on her membership in a protected class. Yet this has not happened. It is thus a clear example of what I will henceforth call the gender identity exception.
Gender identity exception is the idea that although anti-discrimination policies at both the institutional level (Roanoke College) and at the state level (Virginia Human Rights Act) explicitly prohibit discrimination on the basis of gender identity, we are yet living in a time and place in which institutions and government bodies are willing to turn a blind eye to these cases in a way that they wouldn’t do with other protected categories.
It’s a gender identity exception because were the targeted student a member of a different protected class, this all would have played out so very differently.
If swim team members refused to play on the same team as a Black student, or a disabled student, or a Jewish student, or an immigrant student, would they have gone to the international press to talk about their victimhood at having been forced to play on the same team as a Black classmate? Would they have held a press conference at which anti-Jewish speakers made anti-Semitic comments about the student in question? Would they have expressed disgust and told their tales of vomiting over the thought of having to look at their disabled teammate’s body in a swim uniform?
One has to imagine that if the targeted student were a member of any other protected class, and the students had engaged in two years of bullying and harassment on this scale against that student because of their membership in that class, they would have long ago been punished—probably expelled—by the university.
Yet we are living in a time in which might makes right, and the state apparatus has taken the side of the bullies—of those who organized a press conference platforming anti-transgender speakers, of those who express disgust at trans people’s anatomy, of those who make friends in the corridors of power, and of those who wear hot dogs on their t-shirts while giving President Trump a hug.
A final word…
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