A report that the Trump administration is considering a move to define sex under Title IX in a way that could essentially deny the existence of transgender people, including students in the nation’s schools, sparked outrage among advocates for transgender students last week.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the U.S. Department of Health and Human Services said in a memo, according to a New York Times report.
“The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
The agency is working to align interpretations of Title IX and other civil rights laws related to gender among federal agencies, the Times reported. Such a move would restrict civil rights enforcement by the agencies related to transgender issues.
But education law experts and civil rights groups—pointing to federal court decisions siding with transgender students in disputes over access to school restrooms and locker rooms—said such an interpretation of Title IX would be at odds with growing court precedent.
The administration’s interpretation of federal laws informs its approach to civil rights enforcement and regulations, but is not legally binding, said Suzanne Eckes, a professor of educational leadership and policy studies at Indiana University.
That means, regardless of the administration’s position, transgender students could still sue over school policies, and they’d have a likelihood of winning in many courts, she said.
“These guidances don’t have the force of law, they’re not binding, and the law is still the law,” Eckes said.
Sex vs. Gender
According to the New York Times report, the HHS proposal would “define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.”
Advocates for transgender students have argued that the concept of sex in Title IX, the federal law that prohibits sex discrimination in schools, was intended to refer more broadly to the concept of gender. In some cases, they’ve even cited law dictionaries from the 1970s, when the law was enacted, to show their definitions did not refer strictly to biological sex assigned at birth.
Several federal judges have agreed, ruling that the law protects the rights of transgender students to use restrooms and locker rooms that align with their gender identity.
In one of her first moves as U.S. Secretary of Education, Betsy DeVos teamed with Attorney General Jeff
Sessions to withdraw an Obama administration civil rights directive on Title IX that called on schools to recognize transgender students by using appropriate pronouns, protecting them from harassment, and allowing them to use the facilities that align with their gender identity.
The Trump officials declined to take a position on Title IX and transgender students, saying it was up to schools to interpret the law. But the agencies’ civil rights officials have declined to take up claims of discrimination in the time since.
If the Trump administration adopted the narrow definition of sex that HHS has proposed, it would move the Education Department from a hands-off approach to one that’s at odds with inclusive policies in many districts and some state-level civil rights laws that list gender identity as a protected class. That may further inflame tensions over the agency’s approach to civil rights enforcement.
The department’s involvement in the cross-agency discussions over gender identity remains unclear. A spokesperson for the agency did not respond to request for comment by press time.
Some conservative groups who’ve opposed allowing transgender students access to restrooms and locker rooms that match their gender identity say it creates privacy and safety concerns for other students.
After such groups made that argument in a lawsuit, a federal judge in Texas issued a preliminary injunction on the Obama-era guidance, freezing its application nationwide while he considered the case. That lawsuit was later ended after the Trump administration rescinded the guidance.
Alliance Defends Freedom, a conservative Christian organization, last month filed a complaint on behalf of Georgia parents who said their daughter was assaulted in an elementary school restroom, connecting the attack to the district’s transgender-student policies.
Many school districts that have accommodated transgender students for years say they have faced few or no problems.
And several judges have quickly shot down privacy arguments made by students challenging their school’s transgender student policies, Eckes said.
Parents of transgender students have testified in state and local hearings that their children face great fear at school about issues as simple as going to the bathroom.
Some students even refuse to drink water at school, dehydrating themselves to avoid the stigma they feel, their parents said.
Transgender advocacy groups vowed to fight any changes to federal policy related to gender.
A version of this article appeared in the October 31, 2018 edition of Education Week as Narrow Definition of Sex Could Affect Transgender Students