In 1972, President Nixon signed into law a number of amendments to the Higher Education Act of 1965, a federal law enacted to provide funding to colleges and universities and to provide financial assistance to students. These amendments are collectively referred to as the Education Amendments of 1972, with Title IX being perhaps the most well-known and influential. Title IX prohibits sex discrimination in any federally-funded education program or activity. Although many people recognize Title IX for its impact on high school and collegiate sports, the law is broad and covers much more than athletics.
A recent issue involving Title IX concerns its application to transgender students. In 2013, the U.S. Department of Education began to weigh in on the issue, and in 2014, the Department issued guidelines asserting that transgender students are protected from gender discrimination under Title IX (backed by a 2016 statement by the Justice Dept.). In 2017, however, the Trump administration issued a new set of guidelines, effectively withdrawing Obama-era protections that allowed transgender students to use the bathrooms and locker rooms that correspond with their gender identity. This article provides a short overview of Title IX and explains how that law applies to transgender students.
Title IX's Protections
Title IX prohibits sex-based discrimination in schools and other education programs that receive federal funding. Given that the vast majority of schools receive some form of federal funding, Title IX's reach is wide. Although many people associate Title IX with college and high school athletic programs, the law applies to participation in other extracurricular activities such as school bands and clubs, and it protects students from sex-based discrimination in general.
A transgender person is one who identifies with a gender different from the one marked on his or her birth certificate. For example, a person born as a female, but who identifies as a male, is considered transgender. Students who are transgender face unique difficulties and appear to be at a far higher risk of suicide than other students, with some studies showing that roughly half of all transgender students attempt suicide at least once by the age of 20.
In recent years, as the issue of gender identity has become less taboo, there has been discussion regarding how to classify transgender students under the law. For example, there have been lawsuits and other disputes concerning whether Title IX's prohibition against sex discrimination should apply to transgender students, and if so, how.
In the past few years, a number of lawsuits have been filed by transgender students against school districts. In 2014, the U.S. Department of Education resolved a complaint alleging harassment and discriminatory treatment filed by a California transgender student against her local school district. In that complaint, the student, who was born male but identifies as female, alleged that the school district tolerated harassment against her, discouraged her from wearing makeup, and advised her to transfer to a different district. In another case, a transgender student who identifies as male but was born as a female successfully sued his school district after the district refused to allow him to use the boy's restroom.
The U.S. Department of Education under the Obama administration issued guidelines clarifying that Title IX's prohibition against sex-based discrimination extends to claims of discrimination based on gender identity. But in early 2017, those guidelines were recinded by the Trump administration. The newer guidelines do not specifically state that transgender students must use the bathroom or locker room that matches their gender assigned at birth. Instead, the directive says, "the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced [Obama-era] guidance documents."
Regardless of changes in federal policies, many states have passed laws protecting transgender student rights, often going even further than the Obama-era directives. For example, California passed a law in 2013 allowing a transgender student to use school facilities and to participate in sports teams based on his or her identified gender, regardless of the gender listed on the student's school records.
As education policies relating to gender identity continue to be debated, we can expect more disputes and lawsuits over both the federal government's interpretation of Title IX and over state laws that either mirror federal policy or offer protections to transgender students.
Getting Legal Help
If you have questions about Title IX's application to transgender students and discrimination, an attorney can help. An education law attorney can explain Title IX's protections to you, along with any protections that your state may have enacted to protect transgender students.