Gender identity under Title IX

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 Brian Babin [R-TX] introduced HR 5294 to invalidate the "Dear Colleague" letter until superseded by an Act of Congress.[20] In 2016 (HR 5812), and again in 2017 (HR 2796) after the prior bill had died in committee, Rep.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]

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][25] In 2016, the Fourth Circuit became the first[26] 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).[27]

Grimm came out as a transgender boy while a student at Gloucester High School in Virginia.[28][29][30] 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".[29] At the school board meeting, speakers addressing the board called Grimm a "freak" and compared him to a dog.[31] When he refused to use the girls' bathroom, Grimm was offered the use of some broom closets that had been retrofitted into unisex bathrooms.[30] Grimm refused to use those as well, opting to use a bathroom in the school nurse's office.[30]

Grimm obtained legal representation from the American Civil Liberties Union, sued the school under Title IX and referred the case to the DOJ.[32] 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".[32][33]

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.[34][35] 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.[31][34][35] 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",[34] delivering off-topic criticism of the federal government on the issues of marijuana enforcement[31] and sanctuary cities,[34] and explaining that Grimm is a female who "wants to be male".[31] 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".[35]

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.[27] 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.[27][35][36] 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.[27] The school board moved for rehearing en banc, but the Fourth Circuit declined to rehear the case.[37] On June 23, Judge Doumar issued a preliminary injunction in Grimm's favor.[38]

The Supreme Court stayed the Circuit Court's decision in August 2016, and in October 2016, it agreed to take up the case.[39] 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.[40]

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.[41] 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).[42] 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."[42]

On May 22, 2018, 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 of discrimination under Title IX of the Education Amendments of 1972, as well as the U.S. Constitution's equal protection clause.[43][44] On August 9, 2019, Allen decided in Grimm's favor, granting his request for summary judgement. Grimm was awarded attorney's fees, court expenses, and a nominal $1 in damages, and the court issued a permanent injunction requiring the school board to update Grimm's official school records to reflect his gender identity.[45][46]

Allen's ruling was appealed to the US Court of Appeals for the Fourth Circuit. On August 26, 2020, the appeals court ruled against the Gloucester County School Board.[47][48] Describing the facts in the case, Judge Henry Floyd wrote for the majority that "For seven weeks, Grimm used the boys restrooms at Gloucester County High School without incident. Despite that smooth transition, adults in the community caught wind of the arrangement and began to complain." Ruling on Grimm's Title IX claim, Floyd wrote in the majority opinion that "Grimm consistently and persistently identified as male. He had been clinically diagnosed with gender dysphoria, and his treatment provider identified using the boys restrooms as part of the appropriate treatment. Rather than contend with Grimm's serious medical need, the Board relied on its own invented classification, 'biological gender,' for which it turned to the sex on his birth certificate. And even when Grimm provided the school with his amended birth certificate, the Board still denied him access to the boys restrooms. For these reasons, we hold that the Board's application of its restroom policy against Grimm violated Title IX."[49]

Writing about Floyd's equal protection claim, Floyd wrote "We conclude that the Board's policy is "'marked by misconception and prejudice' against Grimm."[49]

Floyd added "At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes." Referring to the Supreme Court's opinion in Bostock v Clayton County, Floyd continued "We have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him 'on the basis of sex.'" He continued "We are left without doubt that the Board acted to protect cisgender boys from Gavin's mere presence — a special kind of discrimination against a child that he will no doubt carry with him for life." Floyd noted in his ruling that "Transgender students face unique challenges in the school setting. In the largest nationwide study of transgender discrimination, the 2015 U.S. Transgender Survey (USTS), 77% of respondents who were known or perceived as transgender in their K-12 schools reported harassment by students, teachers, or staff."[49]

Floyd also wrote about the additional issue of Grimm's school records. "Having held that the Board's bathroom policy violated Grimm's equal protection rights, we easily conclude that the Board's continued refusal to update his school records similarly violates those rights. Unlike students whose gender matches their sex assigned at birth, Grimm is unable to obtain a transcript indicating that he is male."[49]

Floyd concluded his opinion as follows: "The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past. Compare Dred Scott v. Sandford ... and Bowers v. Hardwick ..., with Brown v. Bd. of Educ. of Topeka ... and Obergefell v. Hodges .... How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward. The district court's judgment is AFFIRMED."[49]

The ruling was 2–1 in favor of Grimm. Judge Henry Floyd and Judge James Wynn were in the majority and Judge Paul Niemeyer dissented.[47][48] Niemeyer wrote in dissent "I readily accept the facts of Grimm's sex status and gender identity and his felt need to be treated with dignity. Affording all persons the respect owed to them by virtue of their humanity is a core value underlying our civil society. At the same time, our role as a court is limited. We are commissioned to apply the law and must leave it to Congress to determine policy. In this instance, the School Board offered its students male and female restrooms, legitimately separating them on the basis of sex. It also provided safe and private unisex restrooms that Grimm, along with all other students, could use. These offerings fully complied with both Title IX and the Equal Protection Clause."[49]

Grimm's lawyer Joshua Block (of the ACLU) commented "Transgender students belong in our schools. The court once again ruled that school's obligation to create an environment that is safe and welcoming for all students includes transgender students."

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."[50]

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 (UNC) system that the Act violates Title IX (inter alia), and asked North Carolina not to implement it.[51][52][53][54] Failure to comply could result in the loss of billions of dollars in federal funding to the state,[55] including $1.4 billion for the UNC system and $800 million for federally backed student loans.[56]

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),[57] seeking declaratory judgment that the Act was not discriminatory.[58][59] The DOJ filed suit against North Carolina in the Middle District of North Carolina (assigned to Judge Thomas D. Schroeder),[57] asking the court to stop the state from discriminating against transgender people based, in part, on Title IX.[60] 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.[61]

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.[62][63] Joining lead plaintiff Texas were the states of Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.[62] 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".[63][64] The case was assigned to Judge Reed Charles O'Connor.[65]

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.[66][67]

Mississippi and Kentucky have joined the original plaintiffs in the litigation,[68] and Kansas is considering joining as well.[69]

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.

The Boyertown, Pennsylvania school district implemented a policy in 2016 to comply with the Obama administration's guidance, allowing transgender students to use either restroom as they saw fit. Several non-transgender students, including an unidentified "John Doe", at the school felt that this policy violated their rights, and through the Alliance Defending Freedom, sued the district to reverse the policy. While previous cases (like those above) have found for schools to have such transgender restroom policies to support the rights of transgender individuals under Title IX, this suit specifically focused on the infringement of the rights of others. The District Court refused to grant an injunction to block the policy, and when the Alliance appealed to the Third Circuit, the three-judge panel ruled from the bench that Boyertown's policy was constitutional.[70] In May 2019, the Supreme Court of the United States declined to accept the petition to challenge the federal court ruling, leaving the bathroom policy allowance in place.[71]

In March 2020, Idaho Governor Brad Little signed into law the "Fairness in Women's Sports Act", also known as House Bill 500. This legislation, the first of its kind in the United States, prohibits trans women athletes from competing in female-only sports.[72] In April 2020, the ACLU and the Legal Voice filed a lawsuit, Hecox v. Little, arguing that this law violates the US Constitution and Title IX.[73][74][75]

In August 2020, the United States Court of Appeals for the Eleventh Circuit affirmed a 2018 lower court ruling in Adams v. The School Board of St. Johns County, Florida that discrimination on the basis of gender identity is discrimination "on the basis of sex" and is prohibited under Title IX (federal civil rights law) and the Equal Protection Clause of the 14th Amendment to the US Constitution.[76][77]