Gender identity under Title IX

Title IX of the United States Education Amendments of 1972[1] prohibits discrimination "on the basis of sex" in educational programs and activities that receive financial assistance from the federal government. The Obama administration interpreted Title IX it to cover discrimination on the basis of assigned sex, gender identity, and transgender status. The Trump administration determined that the question of access to sex-segregated facilities should be left to the states and local school districts to decide.[2] The validity of the executive's position is being tested in the federal courts.

Background

Congress kept the core provision of Title IX very brief, only one sentence long. The interpretation and implementation of Title IX was left to the executive, whom Congress expressly "authorized and directed to effectuate the [statute] by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of [its] objectives ..."[3]

President Nixon initially directed the Department of Health, Education and Welfare (HEW) to carry this out.[4] In 1980, HEW was split into two separate agencies —the Department of Health and Human Services (HHS) and the Department of Education (DOE).[5] Primary responsibility for Title IX enforcement in educational institutions was delegated to DOE's Office for Civil Rights (OCR).[6]

The views of the Obama administration

The Obama administration's efforts to apply Title IX to protect LGBT students go back to President Obama's first term in office.[7] In an October 2010 "Dear Colleague" letter, OCR issued guidance on clarifying that Title IX protects LGBT students from harassment on the basis of sex stereotypes.[8] Specifically, OCR stated that, although Title IX does not prohibit discrimination based on sexual orientation, "[t]he fact that the harassment [of a hypothetical gender non-conforming student] includes anti‐LGBT comments or is partly based on the target's actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment."[8] In a 2014 Q&A document, OCR wrote unequivocally that "Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."[9]

Simultaneously with evolving subregulatory guidance, OCR started conducting enforcement actions under Title IX against school districts where discrimination against transgender students was alleged to have taken place. For example, in 2013, OCR reached a settlement with the Arcadia (Calif.) Unified School District, stemming from the complaint by a transgender boy, who was denied the use of boys' restrooms and locker rooms and was required to sleep alone in a separate cabin on an overnight school trip.[10][11] In reaching the conclusion that Title IX applied to the facts of the Arcadia case, OCR took the position discriminating against a transgender student can be a form of sex discrimination, and that the scope of Title IX should be analyzed in light of parallel precedent under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of "sex" in an employment context. Title VII has also been interpreted to encompass discrimination based on sex stereotypes, gender identity, and transgender status by the EEOC and many federal courts.[10][12][13]

2016 Dear Colleague letter

On May 13, 2016, the Department of Justice (DOJ) and DOE issued joint guidance to educational institutions on the scope of Title IX, in the form of a Dear Colleague letter and an accompanying compendium of actual policies and practices, which had previously been enacted by state agencies and school districts throughout the U.S.[14][15][16] The guidance formalized the administration's previously stated view that Title IX prohibits discrimination on the basis of gender identity and clarified that transgender students should therefore be treated consistent with their gender identity at school.[17]

In practical terms, the administration instructed schools that Title IX's prohibition on discrimination means that schools generally must:

  • provide an environment free of sex-based harassment,
  • honor transgender students' preferred names and pronouns,
  • permit all students to participate in sex-segregated activities and use sex-segregated facilities (including bathrooms, locker rooms, and overnight accommodations) in accordance with their gender identity, and
  • protect transgender students' privacy by avoiding non-consensual disclosure of their gender status.[14][15]

The guidance permitted a limited exception for athletics, where accommodating transgender students would impair "the competitive fairness or physical safety of the sport."[15]

Reactions to the Dear Colleague letter were sharply polarized. Head of the DOJ Civil Rights Division Vanita Gupta expressed hope that the guidance would give transgender students "a safe, supportive environment that allows them to thrive and grow."[17] First Lady of New York City Chirlane McCray spoke approvingly of the guidance, saying that it "reaffirms a basic human right."[18] Chad Griffin of the Human Rights Campaign said that the guidance "sen[t] a message that every student deserves to be treated fairly and supported by their teachers and schools."[18]

Conservative politicians voiced opposition to the letter. Texas Lt. Governor Dan Patrick urged school officials to disregard the administration's Title IX guidance, which he considered "blackmail."[19] Republican presidential candidate Donald Trump called on the federal government to take no position on discrimination against transgender students, which in his view should be an issue for the states.[19] Rep. Brian Babin [R-TX] introduced HR 5294 to invalidate the "Dear Colleague" letter until superseded by an Act of Congress.[20] In 2016 (HR 5812), and again in 2017 (HR 2796) after the prior bill had died in committee, Rep. Pete Olson [R-TX] introduced federal legislation which would limit gender identity to biological assignation, which would remove the ability to apply federal civil rights protections to transgender individuals. Olson stated the legislation was in reaction to "the Obama Administration strongly [overreaching] by unilaterally redefining the definition of "sex" with respect to the Civil Rights Act outside of the lawmaking process." Olson went on to call on Congress to "reject the notion of false power stolen from Congress by a White House seeking to impose social policy on America."[21]

The views of the Trump administration

In February 2017, the Department of Justice and Department of Education under the Trump administration withdrew the guidance on gender identity issued by the Obama administration.[2] A letter issued by the departments cited a need to "more completely consider the legal issues involved", and stated that "there must be due regard for the primary role of the States and local school districts in establishing education policy".[2]

In June 2017, Acting Assistant Secretary for Civil Rights Candice Jackson issued instructions to directors of DOE's regional civil rights offices, providing that, although the Obama-era guidance had been rescinded, they may investigate and resolve certain kinds of allegations of sex discrimination involving transgender students, such as "failure to promptly and equitably resolve a transgender student's complaint of sex discrimination; ... failure to assess whether sexual harassment (i.e., unwelcome conduct of a sexual nature) or gender-based harassment (i.e., based on sex stereotyping, such as acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student's preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes) of a transgender student created a hostile environment; ... failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment; ... retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient's attention; ... and different treatment based on sex stereotyping (e.g., based on a student's failure to conform to stereotyped notions of masculinity or femininity)." [22]

In February 2018, a DOE spokesperson clarified that "Title IX prohibits discrimination on the basis of sex, not gender identity ... Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX ... In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX."[22]

Litigation

G. G. v. Gloucester County School Board

Gavin Grimm, wearing a trans pride flag cape and a T-shirt reading "No Body Is Illegal", speaks on stage at the 2018 Trans March San Francisco.

Starting in 2010, OCR brought a number of successful enforcement actions under Title IX on behalf of students who were subject to harassment or discrimination on the basis of their gender identity, gender expression, or failure to conform to gender stereotypes.[7] Eight of the cases were settled in favor of the students.[7] Several private lawsuits were brought as well on similar grounds.[7][23] In 2016, the Fourth Circuit became the first[24] Court of Appeals to rule on the scope of Title IX as applied to transgender students, in the case of Virginia high school student Gavin Grimm (G. G. v. Gloucester County School Board).[25]

Grimm came out as a transgender boy while a student at Gloucester High School in Virginia.[26][27][28] After he began using male facilities, the Gloucester County School Board passed a policy resolution requiring that access to changing rooms and bathrooms "shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility".[27] At the school board meeting, speakers addressing the board called Grimm a "freak" and compared him to a dog.[29] When he refused to use the girls' bathroom, Grimm was offered the use of some broom closets that had been retrofitted into unisex bathrooms.[28] Grimm refused to use those as well, opting to use a bathroom in the school nurse's office.[28]

Grimm obtained legal representation from the American Civil Liberties Union, sued the school under Title IX and referred the case to the DOJ.[30] The federal government agreed to intervene in the case on Grimm's behalf, writing to the court that Title IX "prohibits discrimination based on sex, including gender identity, transgender status, and nonconformity to sex stereotypes".[30][31]

Judge Robert G. Doumar of the United States District Court for the Eastern District of Virginia dismissed Grimm's Title IX claim and denied his request for an injunction.[32][33] In his ruling, Judge Doumar held that Title IX's operative provision should be read narrowly to cover discrimination on the basis of genetic "sex" only, and not gender identity or expression.[29][32][33] During the proceedings in the District Court, Judge Doumar made a number of idiosyncratic statements from the bench, saying that being transgender is a "mental disorder",[32] delivering off-topic criticism of the federal government on the issues of marijuana enforcement[29] and sanctuary cities,[32] and explaining that Grimm is a female who "wants to be male".[29] In reviewing the case, the Court of Appeals criticized Judge Doumar's conduct in the courtroom, writing that his "extraneous remarks [and] suppositions ... marred the hearing".[33]

Grimm appealed to the Fourth Circuit Court of Appeals. On April 19, 2016, a three-judge panel of that court overturned Judge Doumar's decision with respect to Title IX.[25] In their ruling, two of the three panel members agreed with the government's position that the regulation governing sex-segregated facilities is ambiguous, and held that its interpretation of this regulation is entitled to "deference and is to be accorded controlling weight" under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and Auer v. Robbins.[25][33][34] Accordingly, the Court of Appeals sent the case back to the District Court for further proceedings granting deference to DOE's interpretation of the Title IX regulation.[25] The school board moved for rehearing en banc, but the Fourth Circuit declined to rehear the case.[35] On June 23, Judge Doumar issued a preliminary injunction in Grimm's favor.[36]

The Supreme Court stayed the Circuit Court's decision in August 2016, and in October 2016, it agreed to take up the case.[37] The Court reversed its decision to hear the case on March 6, 2017, and vacated the judgment in Grimm's favor citing the Trump administration's withdrawal of the DOE interpretation of the Title IX regulation to which the Fourth Circuit had granted deference.[38]

Before being vacated by the Supreme Court, the ruling by the Fourth Circuit Court of Appeals had controlling status in federal courts located in the states served by the Fourth Circuit – Maryland, Virginia, West Virginia, North Carolina and South Carolina – and was expected to influence the litigation over North Carolina's anti-LGBT law, the Public Facilities Privacy & Security Act.[39] The Fourth Circuit ruling would have served as controlling precedent in the North Carolina litigation with respect to Title IX only – and not with respect to Title VII claims (discrimination in the employment context).[40] The two statutes are closely linked, however: according to Duke University School of Law professor Katharine T. Bartlett, "it would be inconceivable [that courts] would decide that transgender bias is sex discrimination under Title IX, but not under Title VII."[40]

On May 22, U.S. District Judge Arenda Wright Allen of the U.S. District Court of the Eastern District of Virginia denied the Gloucester County School Board's motion to dismiss the case and ruled that Grimm had a valid claim.[41][42]

Whitaker v. Kenosha Unified School District

In July 2016, Ash Whitaker, a transgender boy, filed suit against the Kenosha Unified School District in Wisconsin because the district denied him access to the boys' restrooms in violation of Title IX and the Equal Protection Clause of the U.S. Constitution. In September 2016, a federal district court decided that the school district must let him use the boys' restroom. The school district appealed, and a three-judge panel of the Seventh Circuit Court of Appeals unanimously ruled in the student's favor, finding that "a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX."[43]

North Carolina's Public Facilities Privacy & Security Act (HB2)

On March 23, 2016, North Carolina enacted the Public Facilities Privacy & Security Act. Among the provisions of the Act is a requirement on North Carolina schools to prohibit transgender students from using bathroom and changing facilities corresponding to their gender identity. On May 4, 2016, the federal government notified Gov. Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina system that the Act violates Title IX (inter alia), and asked North Carolina not to implement it.[44][45][46][47] Failure to comply could result in the loss of billions of dollars in federal funding to the state,[48] including $1.4 billion for the UNC system and $800 million for federally backed student loans.[49]

On May 9, 2016, North Carolina and the federal government filed suits against each other. McCrory filed one lawsuit and Senate leader Phil Berger and House Speaker Tim Moore filed a second lawsuit against the United States, both in the Eastern District of North Carolina (assigned to Judge Terrence Boyle),[50] seeking declaratory judgment that the Act was not discriminatory.[51][52] The DOJ filed suit against North Carolina in the Middle District of North Carolina (assigned to Judge Thomas D. Schroeder),[50] asking the court to stop the state from discriminating against transgender people based, in part, on Title IX.[53] Attorney General Loretta Lynch described the lawsuit:

This action is about a great deal more than just bathrooms[.] This is about the dignity and respect we accord our fellow citizens, and the laws that we, as a people and as a country, have enacted to protect them – indeed, to protect all of us. It's about the founding ideals that have led this country – haltingly but inexorably – in the direction of fairness, inclusion, and equality for all Americans. This is not a time to act out of fear. This is a time to summon our national virtues of inclusivity, diversity, compassion, and open-mindedness. What we must not do – what we must never do – is turn on our neighbors, our family members, our fellow Americans, for something they cannot control, and deny what makes them human.[54]

Texas v. United States

On May 25, 2016, eleven states sued to the federal government in the Northern District of Texas in at attempt to overturn the Dear Colleague letter and other administration efforts to protect transgender students under Title IX.[55][56] Joining lead plaintiff Texas were the states of Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Texas, Utah, West Virginia and Wisconsin.[55] In their complaint, the plaintiff states alleged that by "rewriting" Title IX to cover discrimination on the basis of gender identity, the federal government had "conspired to turn ... educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights".[56][57] The case was assigned to Judge Reed Charles O'Connor.[58]

After the suit was filed and before any court action, Texas Lt. Gov. Dan Patrick urged schools to ignore the federal government's Title IX guidance and refuse to allow transgender students to use the facilities consistent with their gender identity.[59][60]

Mississippi and Kentucky have joined the original plaintiffs in the litigation,[61] and Kansas is considering joining as well.[62]

On March 3, 2017, Texas was withdrawn by the plaintiff states in light of the recission by the Education and Justice Departments of guidance letters.

See also

References

  1. ↑ Public Law No. 92‑318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688
  2. 1 2 3 David Smith; Molly Redden (February 23, 2017). "Trump administration rescinds Obama-era protections for transgender students". The Guardian. Retrieved February 23, 2017.
  3. ↑ 20 U.S.C. 1682
  4. ↑ Suggs, Welsh. A Place on the Team. Princeton, NJ.: Princeton University Press, 2005.
  5. ↑ "Landmark Title IX Cases in History" Gender Equity in Sport. February 23, 2006.
  6. ↑ "US Department of Education Principal Office Functional Statements: Office for Civil Rights". Retrieved 2016-05-25.
  7. 1 2 3 4 U.S. Department of Education, Resources for Transgender and Gender-Nonconforming Students
  8. 1 2 U.S. Dept. of Education, Office for Civil Rights, "Dear Colleague" Letter, October 26, 2010
  9. ↑ U.S. Dept. of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, April 29, 2014
  10. 1 2 Chris Geidner, Federal Officials Protect Transgender Student Against Discrimination, BuzzFeed, July 24, 2013
  11. ↑ U.S. Dept. of Education, Office for Civil Rights, Letter to Dr. Joel Shawn, Superintendent of the Arcadia Unified School District, July 24, 2013
  12. ↑ U.S. Dept. of Justice, Office of Public Affairs, United States Reaches Agreement with Arcadia, California, School District to Resolve Sex Discrimination Allegations (press release), July 24, 2013
  13. ↑ EEOC, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers
  14. 1 2 Julie Hirschfeld Davis and Matt Apuzzo, U.S. Directs Public Schools to Allow Transgender Access to Restrooms, The New York Times, May 12, 2016.
  15. 1 2 3 U.S. Dept. of Education, Office for Civil Rights / U.S. Dept. of Justice, Civil Rights Division, Dear Colleague Letter on Transgender Students, May 13, 2016
  16. ↑ U.S. Dept. of Education, Examples of Policies and Emerging Practices for Supporting Transgender Students, May 13, 2016
  17. 1 2 U.S. Dept. of Education, U.S. Departments of Education and Justice Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students, Press Release, May 13, 2016
  18. 1 2 Jack Healy and Richard Pérez-Peña, Solace and Fury as Schools React to Transgender Policy, The New York Times, May 13, 2016
  19. 1 2 Christine Hauser, Transgender Directives for Schools Draw Reaction From Across the Country, The New York Times, May 13, 2016
  20. ↑ Text of the Student Privacy Protection and Safety Act of 2016 at Congress.gov
  21. ↑ "House Members Act to Restore Congressional Authority on Transgender Definition" (Press release). Office of Congressman Pete Olson, Representing the 22nd District of Texas. 7 June 2017. Retrieved 1 August 2017.
  22. 1 2 Holden, Dominic, The Education Department Officially Says It Will Reject Transgender Student Bathroom Complaints Buzzfeed, Feb. 12, 2018.
  23. ↑ The LGBT Bar Association of Greater New York, Transgender Student Loses Fight over Expulsion from University of Pittsburgh over Restroom Issues, May 2015.
  24. ↑ Gov. McCrory files brief to reverse Gloucester transgender restroom policy case, WTKR, May 10, 2016
  25. 1 2 3 4 Fausset, Richard (April 19, 2016). "Appeals Court Favors Transgender Student in Virginia Restroom Case". New York Times. Retrieved May 16, 2016.
  26. ↑ G. G. v. Gloucester County School Board, American Civil Liberties Union
  27. 1 2 The Editorial Board, For Transgender Americans, Legal Battles Over Restrooms, The New York Times, July 27, 2015
  28. 1 2 3 John Riley, Gavin's Story: Gavin Grimm is the new face of the transgender movement, Metro Weekly, May 12, 2016
  29. 1 2 3 4 Mark Joseph Stern, Judge Bemoans Sanctuary Cities, Marijuana Legalization in Hearing on Trans Bathroom Access, Slate, July 28, 2015
  30. 1 2 Dominic Holden, Justice Dept. Backs Transgender Boy In Lawsuit Against School District, BuzzFeed, June 30, 2015
  31. ↑ G. G. v. Gloucester County School Board (E.D. Va.), Statement of Interest of the United States, June 29, 2015
  32. 1 2 3 4 Dominic Holden, Judge Throws Out Key Argument In Transgender Student Restroom Case, BuzzFeed, July 27, 2015
  33. 1 2 3 4 G. G. v. Gloucester County School Board (4th Cir.), Opinion of the Court, April 19, 2016
  34. ↑ Christian Farias, Appeals Court Sides With Trans Student Denied Access To High School Boys Bathroom, Huffington Post, April 19, 2016
  35. ↑ U.S. Court Denies Motion to Reconsider Transgender Bathroom Ruling, Reuters, May 31, 2016
  36. ↑ Dominic Holden, Federal Court Orders School Board To Let Transgender Boy Use Restroom, BuzzFeed, June 24, 2016
  37. ↑ Barnes, Robert; Balingit, Moriah (October 28, 2016). "Supreme Court takes up school bathroom rules for transgender students". The Washington Post. Retrieved November 30, 2016.
  38. ↑ Liptak, Adam (March 6, 2017). "Supreme Court Won't Hear Major Case on Transgender Rights". New York Times. Retrieved March 6, 2017.
  39. ↑ Ilona Turner, Why the Gavin Grimm Decision Is Game-Changing for the Fight Against Anti-Trans Legislation, Huffington Post, April 20, 2016.
  40. 1 2 Jay-Anne Casuga, North Carolina Bathroom Battle May Turn on Deference to Agency, Daily Labor Report, Bloomberg BNA, May 24, 2016
  41. ↑ Hurley, Lawrence. "U.S. court backs transgender student at center of bathroom dispute".
  42. ↑ Freeman, Vernon. "Federal court rules in favor of transgender student Gavin Grimm".
  43. ↑ Kenosha Unified School District No. 1 Board of Education v. Whitaker (4th Cir. May 30, 2017)
  44. ↑ "US Justice Department: HB2 violates Civil Rights Act". charlotteobserver. Retrieved May 10, 2016.
  45. ↑ "Feds Tell North Carolina Governor That Anti-LGBT Law Violates Civil Rights Act". The Huffington Post. Retrieved May 10, 2016.
  46. ↑ Julia Glum. "North Carolina's HB 2 Violates Federal Civil Rights Law, Justice Department Says: Report". International Business Times. Retrieved May 10, 2016.
  47. ↑ Dept. of Justice, Civil Rights Division, Letter to Gov. Pat McCrory, May 4, 2016
  48. ↑ ABC News. "NC College System's Federal Funds in Crosshairs of LGBT Law". ABC News. Retrieved May 10, 2016.
  49. ↑ WRAL. "McCrory: Feds 'being a bully' over HB2". WRAL.com. Retrieved May 10, 2016.
  50. 1 2 Jonathan Drew, North Carolina's transgender law creates tangle of lawsuits, Associated Press, May 12, 2016
  51. ↑ Craig Jarvis, Anne Blythe, Michael Gordon, McCrory, NC lawmakers sue Justice Department over HB2; feds counter with lawsuit, May 9, 2016, The Charlotte Observer
  52. ↑ WRAL. "McCrory, lawmakers want courts to declare HB2 doesn't discriminate". WRAL.com. Retrieved May 10, 2016.
  53. ↑ United States v. North Carolina (M.D.N.C.), Complaint, May 9, 2016
  54. ↑ Justice Department Files Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals, USDOJ press release, May 9, 2016
  55. 1 2 David Montgomery and Alan Blinder, States Sue Obama Administration Over Transgender Bathroom Policy, The New York Times, May 25, 2016
  56. 1 2 Texas v. United States (N.D. Tex.), Complaint for Declaratory and Injunctive Relief, May 25, 2016
  57. ↑ Dominic Holden and Chris Geidner, 11 States Sue Obama Administration Over Transgender Rules, BuzzFeed, May 25, 2016
  58. ↑ Christopher Collins, Federal judge in transgender case sided with states in similar lawsuit, Times Record News (Wichita Falls, TX), June 1, 2016
  59. ↑ Texas' Lt. Gov. Asks Schools to Ignore Transgender Directive, The Associated Press, May 31, 2016
  60. ↑ Zack Ford, Dan Patrick Launches Crusade Against Every Transgender Student In Texas, ThinkProgress, June 1, 2016
  61. ↑ Christopher Collins, Mississippi and Kentucky join federal transgender lawsuit, Times Record News, June 21, 2016
  62. ↑ Christopher Collins, Kansas may join federal transgender lawsuit in Wichita Falls, Times Record News, June 3, 2016
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