Title IX Protections for Transgender Students

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 federal civil rights law.

This article provides a short overview of Title IX and how it applies to LGBTQ+ and gender nonconforming students. It also discusses recent developments regarding its interpretation.

What Is Title IX?

Title IX prohibits sex-based discrimination in public 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.

Transgender Students

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 such as sexual violence and appear to be at a far higher risk of suicide than other cisgender 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.

The Evolution of Title IX Protections

• In 2013, the Department of Education (DoEd) began to weigh in on the issue, and in 2014, it issued guidelines asserting that transgender students are protected from gender discrimination under Title IX (backed by a 2016 statement by the Justice Department. (DOJ).
• In 2017, the Republican Trump administration issued a new set of guidelines, effectively withdrawing Obama-era protections that allowed transgender students to use pronouns and the bathrooms and locker rooms that correspond with their gender identity.
• On June 15, 2020, the U.S. Supreme Court in Bostock v. Clayton County concluded that discrimination based on sexual orientation and/or gender identity inherently involves discrimination on the basis of sex in the context of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment and is relied on when interpreting Title IX and other federal civil rights laws.
• After President Biden was sworn into office on January 20, 2021, he signed Executive Order 13988, directing all federal agencies to review laws that prohibit discrimination on the basis of sex, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation as aspects of sex discrimination.
• On March 26, 2021, the U.S. Department of Justice under the Biden administration issued a memorandum confirming that Bostock applies to Title IX and that Title IX does prohibit discrimination on the basis of gender identity and sexual orientation.
• On June 16, 2021, Secretary of Education Miguel Cardona issued a Notice of Interpretation, also affirming the enforcement of Title IX with respect to discrimination based on sexual orientation and gender identity.

Although the Biden administration has explicitly stated Title IX protections extend to transgender students and that they will investigate complaints involving transgender students, their policy directives do not yet have the force of law.

However, Joe Biden announced his intention to significantly rewrite Trump-era Title IX regulations in 2022 and plans to include new protections for transgender students in the rewrite, including the right to access school bathrooms that match their gender identity and the right to participate in school sports. These efforts are led by the DoEd's Assistant Secretary for Civil Rights.

Many states have also 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.

Recent Cases Involving Title IX Protections for Transgender Students

In the past few years, a number of lawsuits have been filed by transgender students against school districts.

• In 2014, DoEd 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 school administrators 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.
• In June 2021, DOJ filed two Statements of Interest in litigation to challenge state laws that violate the legal rights of transgender youth. The first cited Title IX in addressing West Virginia's ban on transgender girls from participating in sports on teams consistent with their gender identity. The second addressed Arkansas's law prohibiting healthcare providers from providing transgender youth with certain medically necessary care.

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 ensure transgender equality and ensure that transgender students have equal access to school facilities, opportunities, and functions.