While the Trump administration hasn’t issued guidance to schools on the treatment of transgender students under Title IX, it has weighed in on a lawsuit to say how the federal law should be interpreted.
When administration officials rescinded Obama-era guidance on the treatment of transgender students in 2017, U.S. Secretary of Education Betsy DeVos said such decisions are best left “at the state and local level.”
DeVos and then-U.S. Attorney General Jeff Sessions did not release new guidance on whether the sex discrimination protections in Title IX applied to transgender students. And they did not advise schools on how to handle transgender students’ names, pronouns, educational records, participation in sex-segregated sports, and access to facilities like restrooms and locker rooms.
But Tuesday, the U.S. Department of Justice filed a statement in a federal lawsuit, seeming to side with students who argue that a Connecticut policy on transgender student athletes is unfair.
That policy, which requires schools to allow transgender athletes to play on teams that match their gender identity, cannot be supported by Title IX, says a statement of interest filed by U.S. Attorney General Bill Barr.
When Congress wrote the anti-sex discrimination law, it used the word “sex’ in its “ordinary biological sense,” referring to a student’s physical anatomy, says that statement.
In the lawsuit, three cisgender girls challenged the Connecticut Interscholastic Athletic Conference and their local school district over the policy, claiming they were at a disadvantage when they were required to compete against two transgender girls in track events.
The Connecticut policy is “at tension” with “the core of Title IX’s purpose,” which is to ensure that women have an equal opportunity to participate, the Justice Department statement said.
“CIAC nevertheless has decided to force biological girls to compete against biological boys who publicly identify with the female gender and want to compete on sex-specific athletic teams,” the statement said, noting that the Connecticut policy does not require transgender students to “undergo any physiological changes to reflect their gender identity.”
The brief argues that it would be fair to require students to compete on teams that reflect their sex identified at birth, regardless of their gender identity.
Advocates for transgender students have argued that Title IX protections cover gender identity, and the Obama administration agreed with them in the since-rescinded guidance. In several cases largely centered on access to restrooms and locker rooms that were filed when that Obama-era guidance was still in place, courts sided with transgender students, deferring to federal agencies’ interpretation of the law. One federal judge in Texas disagreed with that interpretation, ordering a nationwide injunction that stopped the guidance from being enforced.
Since the Trump administration rescinded that directive, some federal courts have still sided with transgender students.
In August, a federal judge ruled that the Gloucester County, Va., school board’s policy that barred former student Gavin Grimm from using restrooms corresponding with his gender identity violated his rights under both Title IX and the equal-protection clause of the U.S. Constitution.
The school board’s policy required limited male and female locker rooms and restrooms to the “corresponding biological genders” and said students with gender identity issues would be offered “an alternative appropriate private facility.”