Court Nominee Expressed Doubt That Title IX Protects Transgender Students

By Mark Walsh — September 29, 2020 4 min read
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U.S. Supreme Court nominee Amy Coney Barrett expressed doubts four years ago that Title IX protects transgender students who seek to use school restrooms and locker rooms consistent with their gender identity, saying “it does seem to strain the text of the statute to say that Title IX demands” that result.

Barrett, currently a judge on the U.S. Court of Appeals for the 7th Circuit, in Chicago, is President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg. The Senate Judiciary Committee is set to begin confirmation hearings on Oct. 12, and Trump has said he hopes to see Barrett confirmed before Election Day.

Transgender rights cases appear poised to be returning to the Supreme Court soon. Two federal appeals courts have ruled in recent months that Title IX of the Education Amendments of 1972, which bars discrimination based on sex in federally funded schools, encompasses discrimination against transgender students in cases involving restroom access.

Those decisions came after the Supreme Court ruled in June that an employer who fires a worker for being gay or transgender violates the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964.

Following the high court’s decision in Bostock v. Clayton County, Ga., both the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled that school district policies barring transgender male students from the boys’ restrooms violated Title IX (as well as the 14th Amendment’s equal-protection clause).

An 11th Circuit panel, ruling 2-1 on Aug. 7 in favor of Florida transgender student Drew Adams, said “Bostock has great import for Mr. Adams’s Title IX claim.” The school district has sought rehearing before the full 11th Circuit of the panel’s decision in Adams v. St. Johns County School Board.

On Aug. 26, a 2-1 panel of the 4th Circuit ruled in favor of Virginia transgender student Gavin Grimm.

“After the Supreme Court’s recent decision in Bostock v. Clayton County ... , we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex’,” the majority said in Grimm v. Gloucester County School Board. The 4th Circuit panel also held that the school district policy violated the equal-protection clause.

A 2016 Speech

Barrett was commenting on an earlier stage of Grimm’s case in November 2016 during a lecture at the Jacksonville University Public Policy Institute when she brought up the question of whether Title IX protects transgender students.

Barrett, who was still a full-time law professor at the University of Notre Dame at the time, described how the Supreme Court had just agreed to take up Grimm’s case.

Barrett pointed out that the question in the case before the Supreme Court involved an interpretation of Title IX regulations by President Barack Obama’s administration, which said in a “dear colleague” letter that a Title IX regulation required schools to permit transgender students to use facilities consistent with their gender identity.

“That is a huge shift,” Barrett said in a discussion with the lecture moderator. “It’s a shift from the prior interpretations of that statute, which said separating locker rooms and showers and bathrooms on the basis of gender [was] OK. It’s a big shift and it’s a ‘who decides’ depending on who’s on the court.”

“People feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present, and we’ve seen all those debates,” Barrett said. “When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result at that time. Maybe things have changed so that we should change Title IX. ... But it does seem to strain the text of the statute to say that Title IX demands it.”

(The video of the lecture is here, with the comments on Title IX beginning about 39 minutes in.)

The Supreme Court had granted review of Grimm’s case at that time largely on the question of whether the Obama administration’s informal guidance was entitled to deference from the courts. When the then-new Trump administration in 2017 withdrew the Obama guidance on transgender students, the Supreme Court sent Grimm’s case back to the lower courts, resulting in the August decision by the 4th Circuit in Grimm’s favor.

The Gloucester County school board has indicated it will appeal the case directly to the Supreme Court. There are also cases working their way through the courts regarding participation in athletics by transgender male students.

Barrett served as a law clerk to the late Justice Antonin Scalia and said at the White House Saturday that she would try to emulate his judicial philosophy. At the Jacksonville University lecture in 2016, she said “Justice Scalia cared a lot about statutory interpretation.”

“When Congress enacts a statute, the words matter,” she said. “You interpret the words as they’re written. If Congress didn’t anticipate everything that would unfold, if circumstances change, the judge doesn’t have license to change the statute.”

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A version of this news article first appeared in The School Law Blog.