Transgender transgender rights under Title IX of the

Transgender Rights

In late February of this year, shortly after President Trump’s
inauguration, his justice department issued a letter to schools overturning the
guidance issued by the Obama Administration related to the protection of
transgender rights under Title IX of the Civil Rights Act passed by Congress a
half century before. The Trump administration directive came weeks before a
bathroom equality case for a transgender student was to be heard by the Supreme
Court on appeal, and caused the case to be remanded to lower courts to be heard
again with consideration of the new guidance.

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The issue in controversy centered around transgender rights in
schools. Specifically, after the Obama administration issued a guidance letter
in 2016 stating that it interpreted the Civil Rights Act of 1964 (Act) to
provide protections to transgender individuals. In particular, the guidance
interpreted Title IX of the Act to extend such protections to educational
environments. It was this gender protection argument that precipitated a case
in Virginia, G.G. v. Gloucester County School Board, in which the school
district sought to stop a transgender student from using the female public
bathroom consistent with her gender identity and not her actual gender, and to
overturn the guidance letter that would protect that right. The plaintiffs’
claim was that the guidance letter amounted to overreaching by the Obama
administration, and insisted that policy matters such as this should be the
responsibility of Congress and the states to enact. The US District and
Appellate court would not overturn the guidance letter and referred the case to
the Supreme Court of the United States.

At the core of the dispute over transgender rights in education is
the Civil Rights Act of 1964, and specifically Title IX of that Act that was
passed by Congress in 1972.

The prohibition against
discrimination is deeply rooted in our Constitution. The Fourteenth Amendment
provides that “No State shall… deny to any person within its jurisdiction the
equal protection of the laws.”1 During the Civil Rights era,
Congress passed an extremely important piece of legislation in 1964 – the Civil
Rights Act.  While the Act covers a myriad of civil rights issues, the
Title IX Education Amendments (Title IX) were passed in 1972 to prohibit
discrimination in education when federal funds are involved (this was Congress
using the Spending Clause to exercise jurisdiction). Title IX provides
that “No person… shall, on
the basis of sex… be subjected to discrimination under any education program
or activity receiving Federal financial assistance.”2 The
implementing regulations for Title IX further provide that “A recipient may
provide separate toilet, locker room, and shower facilities on the basis of
sex…”3 So, schools that receive federal funding cannot engage in
sex discrimination under Title IX’s provisions. Title IX, however, does allow
for certain sex segregation – including living quarters, bathrooms, locker
rooms, and changing facilities. Such segregation is allowed so long as the
facilities provided for “students of one sex” are “comparable” to the
facilities provided for “students of the other sex.”

There was an effort in Congress in 2011 to pass the Student
Non-Discrimination Act, but that law died in committee in Congress. The law
aimed to protect Lesbian, Gay, Bisexual, and Transsexual (LGBT) students
against discrimination, as well as bullying, in school. It was modeled after
Title IX of the Education Amendments of 1972, which covered sex discrimination.
Otherwise, transgender individuals were not specifically mentioned in Title IX,
until this year the government’s view was that it does apply to transgender.
That is, the view was that a person who identifies with a male gender should be
allowed to use the male facilities, and that a person who identifies with a
female gender should be allowed to use the female facilities so long as the
identification is clear and consistent. That interpretation was in line with
medical and psychiatric recommendations for transgender individuals. In fact,
in 2015, the Department of Education, under the Barack Obama administration,
issued a guidance letter which opined that when a school has segregated
facilities based on gender such as bathrooms and locker rooms, students should
have access to the respective male and female facilities based on what gender
they identify with. The letter did not change or contradict Title IX, rather it
was to advise educational institutions how the Secretary of Education sees the
provisions of the law applying in particular situations, how the Department of
Education and the Department of Justice would interpret Title IX and its
provisions. This advisory letter was at the heart of the Fourth Circuit’s 2016
decision finding that a Virginia transgender boy must be allowed to use the
boys’ bathrooms at his public school.

There was definite backlash to the Obama administration’s issued
opinion letter. Several lawsuits came up against the Administration, and
several states tried to enact some legislative push back laws. One of the more
notable actions was in March of 2016, when North Carolina passed the North
Carolina Public Facilities Privacy and Security Act, otherwise known as the “Bathroom
Law”, which require students to use bathrooms according to their biological
gender, as it appears on a person’s birth certificate.

Texas and Nebraska filed suits against the Obama administration
challenging the opinion letter.  The states felt that letter is invalid
primarily because the terms “sex” and “sex discrimination” as they appear in
Title IX are not ambiguous and so should not be interpreted by the government
and that when Title IX was passed, Congress did not intend for it to be
interpreted as it was in the letter. Texas and Nebraska argued in their suits
that Congress did not intend that Title IX would permit transgender individuals
to facilities, such as bathrooms, that match their gender identity, and
therefore Title IX should not be interpreted in that way. The Obama Department
of Justice argued, however, that because the terms “sex” and “sex
discrimination” are ambiguous in Title IX, the Federal Government has the
authority to reasonably interpret them. Statutes, once passed, are not
interpreted according to Congressional intent. Thus, the Supreme Court had to
answer the question of whether or not the federal government’s interpretation
of Title IX was legally valid, and if bathrooms, changing rooms, locker rooms
in federally funded schools be accessible to students based on gender identity.

One of the cases that was referred to the Supreme Court of the
United States was the case of G.G. v. Gloucester County School Board. In that
case, G.G., a transgender boy, sought to use the boys’ restrooms at his high
school in Virginia.  After G.G. began to use the boys’ restrooms with the initial
approval of the school administration, the school board – based on parental
pressure – instituted a policy banning G.G. from the boys’ restroom. The
American Civil Liberties Union and the ACLU of Virginia filed a lawsuit against
the Gloucester County School Board for pursuing this discriminatory policy that
segregated transgender students. The policy effectively banned such students
from public restrooms and required them to use “alternative private” restrooms.
In the lawsuit against the school board, G.G. alleged that the board illegally
discriminated against him in violation of Title IX and the Equal Protection
Clause of the Constitution. The district court in Virginia dismissed G.G.’s
Title IX claim and denied his request for an injunction. G.G. appealed the
district court decision to the Fourth Circuit Court of Appeals, which concluded
the district court did not properly consider the relevant Department of
Education regulations. The Court of Appeals reversed the dismissal of G.G.’s
Title IX claim, and remanded the case back to the district court to be
considered under the appropriate standard.

This case was scheduled for argument in front of the Supreme Court
in March 2017.  The question presented to the Court was whether or not the
Gloucester bathroom policy complied with the Title IX prohibition on gender
discrimination. Before this case was heard by the Supreme Court, in February
2017, shortly after Donald Trump’s inauguration, the Department of Justice and
Department of Education issued a memo withdrawing the Obama administration’s
guidance memo. The Department of Justice forwarded that memo to the Supreme
Court and asked that it be considered when looking at the Virginia case instead
of the Obama Administration memo.

The Trump administration claimed that the Obama administration’s
guidance letter did not sufficiently analyze or explain how the opinion was
consistent with the language of Title IX, and instead the Department of Justice
assured that is “committed to the proper interpretation and enforcement of
Title IX and to its protections for all students, including LGBTQ students. The
Attorney General took a position that the Executive Branch should not be
setting policies, and instead that “Congress, state legislatures, and
local governments are in a position to adopt appropriate policies or laws
addressing this issue.” However, the Trump administration’s new letter did not
state that gender identity is not protected by Title IX.

Interestingly, the Trump Secretary of Education, Betsy DeVos,
immediately issued a statement that LGBT students do need protection, and that
it is the federal government’s obligation to ensure that protection is present.
DeVos went a step further to state that transgender students must be protected
from bullying.

On March 6, 2017, the Supreme Court of the United States vacated
the Fourth Circuit Appellate Court’s judgment on the G.G. case, and remanded or
returned the case to the Court of Appeals for further review considering the
guidance letter issued by the Trump Department of Education and Department of
Justice on February 22, 2017.

The Civil Rights Act of 1964 was a sweeping piece of legislation
enacted by Congress that affected all of our lives. In 1972, Congress passed an
amendment to the Civil Rights Act in the form of Title IX provisions that
specifically addressed discrimination in schools. Among the types of
discrimination covered by Title IX is gender-based discrimination. However,
Title IX does not explicitly list gender-identity as a protected category. In
2016, the Obama Executive Branch issued to publicly funded schools an opinion
memorandum from the Department of Education and Department of Justice
admonishing that gender identity is protected under Title IX. Several lawsuits
arose subsequent to this memo both against as well as relying on it, such as
the G.G. v. Gloucester School Board case that was appealed all the way to the
Supreme Court. Before the Supreme Court heard the case, the new Trump Executive
Branch issued a letter to revoke the prior administration’s guidance memo and
urging the Supreme Court to leave policy decisions to Congress and State
Legislatures. It is unclear what the fate of transgender student rights will be
in publicly funded schools now, but it is seems like this issue will be
considered on a jurisdiction by jurisdiction basis – many of which are strongly
oppose such protection unfortunately.