Legal Backgrounder on Title IX and Transgender Students

The U.S. Supreme Court will hear a Virginia student's case against his school district over restroom access, in which a central issue is the proper interpretation of a federal regulation under Title IX.
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Legal Backgrounder on Title IX and Transgender Students

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The U.S. Supreme Court has agreed to hear the case of Gloucester County School Board v. G.G., which involves a high school senior, Gavin Grimm, who was born female but now identifies as male. He is seeking to use the restroom corresponding with his gender identity, but the Virginia school district adopted a policy requiring that students use restrooms limited to their "biological gender." A central issue in the case is the proper interpretation of a federal regulation under Title IX.

Here are some key background points in the debate:


President Richard M. Nixon signs into law the Education Amendments of 1972, which includes Title IX:

Charles Harrity/AP-File
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.


The U.S. Department of Health, Education, and Welfare issues a regulation for Title IX clarifying that:

A recipient [of federal funding] may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.

Supporters of the Gloucester County school board contend that when Title IX passed, Congress contemplated the term "sex" to refer to anatomical sex. Lawyers for Gavin Grimm argue that the statute and the regulation view the term as encompassing all physiological, anatomical, and behavioral aspects of sex.


Jon Elswick/AP-File

U.S. Supreme Court Justice Antonin Scalia is the author of the first of two opinions that have generally provided support for Grimm’s case. In Auer v. Robbins, Scalia writes the majority opinion that says a federal agency’s interpretation of its own ambiguous regulation must be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.

That decision will be the basis for an April 19, 2016, decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va. It gave "Auer deference" to the U.S. Department of Education’s view that its Title IX regulation, which in 1975 was understood simply to mean that schools could provide separate restrooms for girls and boys, now means that some students’ gender identities do not align with their birth-assigned sex and that schools must allow students to use the restrooms that correspond with their gender identity.

PHOTO: A pair of previous high court precedents could come into play when the transgender case is argued later this term.


Scalia writes the opinion for a unanimous Supreme Court in Oncale v. Sundowner Offshore Services Inc., which involved a male oil-rig worker who was subjected to sex-related, humiliating actions by his male co-workers. The Supreme Court held that the worker could sue for a claim of same-sex harassment as a form of illegal sex discrimination under Title VII of the Civil Rights Act of 1964.

Scalia writes that "male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." This has been cited by Grimm’s allies as support for the idea that Title IX is also open to newer interpretations.


Pablo Martinez Monsivais/AP

By this time, President Barack Obama’s administration has taken the view in various guidance and enforcement actions that federal civil rights laws cover transgender status. In response to a letter from a lawyer regarding Gavin Grimm’s case, an official with the Education Department’s office for civil rights writes that the department had recently reached resolutions with two other school districts in cases involving transgender students who were denied the use of the restroom or locker room corresponding to their gender identity.

The letter was from James A. Ferg-Cadima, who was the acting deputy assistant secretary for policy at the OCR. He says in the letter that when a school has "sex-segregated" restrooms and locker rooms, "a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities."


After the 4th Circuit court issues its rule that deference must be given to the Education Department’s views as expressed in the Ferg-Cadima letter, the Education Department and the U.S. Department of Justice on May 13 issue a "Dear Colleague" letter to educators nationwide. The letter is described as "significant guidance" and states in broader terms that "a school must not treat a transgender student differently from the way it treats other students of the same gender identity."

"A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns," says the letter from Catherine E. Lhamon, the assistant secretary for civil rights in the Education Department, and Vanita Gupta, the principal deputy assistant attorney general for civil rights in the Justice Department.

This letter has been challenged in a lawsuit by some 20 states, led by Texas, and a federal district judge in Texas has issued a nationwide injunction blocking it. It is not clear whether the Supreme Court will consider the "Dear Colleague" letter as it weighs the Gloucester County case.

Steve Helber/AP

This year:

The U.S. Supreme Court agrees to take up transgender rights for the first time in a case involving Gavin Grimm, a Gloucester, Va., high school student, and his right to use the boys’ restroom at his high school.

A version of this article appeared in the November 16, 2016 edition of Education Week as Title IX and Transgender Students: Some Key Developments Over 44 Years