I recognize that I am sticking my foot in a hornet’s nest by daring to write an article about this subject. Sides have been taken, and both sides are polarized and ready for a legal battle. This article is an attempt at an objective look at the legal issues.
The passage of Title IX in 1972 protected rights with respect to gender issues, with its initial focus being the role of the state in promoting the advancement of women. The consideration of the explicit anti-discriminatory law to protect students and employees in educational settings was a milestone in history. It influenced more than just high school and college athletics; it was a prohibition against sex-based discrimination in education all together.1
Title IX has evolved from its inception in 1972; the courts since have interpreted it to prohibit sexual harassment for both employees and students, as well as student-to-student sexual harassment. The latest issue involves the rights of transgender persons and whether Title IX protects transgender employees and students.
Title IX says: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education programs or activity receiving federal financial assistance.”2 Federal law also says “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”3
In 2016, EEOC and OCR issued new documents addressing “transgender.” EEOC issued a “Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” Citing multiple appellate court cases, EEOC defined “sex” as based upon “gender identity.” The Fact Sheet notes that “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.” While the Fact Sheet addressed Title VII, the implications for Title IX employment issues are implicit. Noting this is a workplace issue, EEOC added:
Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.
OCR issued a Dear Colleague Letter on Transgender Students on May 13, 2016. In it, OCR likewise defined the term “sex” to mean gender identity and stated that a school “may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.” Additionally, the Department of Education’s Office of Elementary and Secondary Education released “Examples of Policies and Emerging Practices for Supporting Transgender Students,” which is “a compilation of policies and practices that schools across the country are already using to support transgender students.” Neither document was universally well-received.
Thus, litigation has ensued involving the definition of the term “sex.” The farthest a court case has gotten to date is G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016) (en banc review den’d 2016 WL 3080263, 4th Cir., May 31, 2016), and it may still be appealed to the United States Supreme Court.
G.G. involved a district that passed a policy that restroom usage was to be based on biological gender, and that students with gender identity issues shall be provided an alternative appropriate private facility. OCR disagreed. The district court ruled for the school, but the Fourth Circuit reversed:
Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. * * * We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”
G.G. at *7. “In a case such as this, where there is no constitutional challenge to the regulation or agency interpretation, the weighing of privacy interests or safety concerns—fundamentally questions of policy—is a task committed to the agency, not to the courts.” Id. at *8, footnote omitted. “Not only may a subsequent administration choose to implement a different policy, but Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the Department regarding the use of restrooms by transgender students.” Id. at *9. The case is now on appeal pending acceptance before the U.S. Supreme Court.
On May 25, 2016, the State of Texas, Harrold (Tex.) Independent School District, and ten other states joined in a suit against the U.S. government (including OCR and EEOC).4 In the suit, the plaintiffs claim that the manner in which the federal government redefined gender, based upon gender identification, as opposed to biological gender, violated the law. Among the many arguments set forth by the plaintiffs, most attack the U.S. for having allegedly violated the Administrative Procedures Act for not following its own rules in adopting this new position.5
On July 27, the Federal Government backtracked, through its pleading in opposition to the State of Texas’s Application for Preliminary Injunction, claiming that their Guidance Letter did not threaten to withhold federal funds, and that “[t]hese guidance documents—which are the focal point of plaintiffs’ claims—are merely expressions of the agencies’ views as to what the law requires. They are not legally binding, and they expose plaintiffs to no new liability or legal requirements.”6
So what should a school do? Most everyone that follows any form of media knows Fort Worth ISD has a procedure that bases restroom usage on gender identity, and that Lieutenant Governor Patrick and Attorney General Paxton have vocally opposed the policy for differing reasons. Soon we may see the Texas Legislature consider a law that directs schools to ignore OCR and EEOC. Once again, schools have become the battleground for a public issue.
The answer is simple: no one knows the answer. It is reasonable for a school to follow OCR and EEOC’s guidance and pass policies that base the word “sex” on gender identity. It is also still reasonable to take the position that the term “sex,” as written in 1972, meant “biological gender,” and that your district elects to pass a policy based upon that interpretation. It is also likely that the latter is more likely to get a school district sued. In the end schools will not be sure until the U.S. Supreme Court or the United States Congress get involved and answer the question of what the word “sex” means in Title IX or Title VII.
Remember, no one should be walking around naked in a restroom. If a biological male identifies as a female and uses the girls’ restroom, then that student will need to use a stall, since girls’ restrooms do not have urinals. Likewise, a biological female who identifies as a male has no use of a urinal and will use a stall regardless. If a school does not have stalls, then the time may have come to revisit that privacy issue.
Districts that wish to place rules for identifying oneself as a particular gender can create reasonable procedures, and schools can also address those that request greater privacy. There will be public pressure from both sides of the aisle, and schools will soon have to choose a side for the time being, until Congress or the U.S. Supreme Court act.
1 Since Title IX was passed, the number of women enrolled in undergraduate programs passed men, and in 2014 undergraduate enrollment was 56% female (9.7M) to 44% male (7.6M). http://nces.ed.gov/programs/coe/indicator_cha.asp; see also, http://www.prb.org/Publications/Articles/2007/CrossoverinFemaleMaleCollegeEnrollmentRates.aspx. According to Pew Research, “[i]n 1994, 63% of recent female high school graduates and 61% of male recent high school graduates were enrolled in college in the fall following graduation. By 2012, the share of young women enrolled in college immediately after high school had increased to 71%, but it remained unchanged for young men at 61%.” http://www.pewresearch.org/fact-tank/2014/03/06/womens-college-enrollment-gains-leave-men-behind/.
2 Title IX of the Educational Amendments of 1972 (Title IX), 20 U.S.C.A § 1681 (West 1972).
3 34 C.F.R. § 106.33 (2000).
4 The other defendants include: Alabama; Wisconsin; West Virginia; Tennessee; Arizona Department of Education; Heber-Overgaard Unified School District (AZ); Paul LePage, Governor of Maine; Oklahoma; Louisiana, Utah, and Georgia.
5 Ten more states filed a similar suit on or about July 8, 2016. Those states include Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.