Title IX Protects Transgender Student’s Rights, Feds Say in Court Filing

By Evie Blad — February 25, 2015 3 min read
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Attorneys from the U.S. Departments of Justice and Education filed a statement of interest in a federal court case Tuesday, arguing that Title IX provides certain protections for transgender students in schools.

The court filing comes as some LGBT student advocates insist schools need clearer guidance on their obligations to transgender students under federal civil rights laws.

In the case, the parents of a student who was born a girl but who now identifies as a boy argued that his former middle school in Wyandotte, Mich., discriminated against him in several ways. If those allegations can be proven as true, the student has “sufficient facts to establish a sex stereotyping claim,” the federal agencies said in their court filing.

Specifically, the student claims that school leaders refused to let him use the boy’s bathroom, requiring him to use the staff ladies room [which was highly visible to students eating in the cafeteria] or a unisex bathroom instead. As a result, male classmates teased the boy when they saw him leaving the women’s restroom, the filing says. When the plaintiff’s mother complained, school leaders told her she was being “overly sensitive.”

Teacher also addressed him as Olivia, his birth name, and used female pronouns, even after he insisted he identified as a male, the filing says, and they “outed” him as transgender to students and their parents, contributing to social isolation.

The school district has moved to dismiss the claims, arguing “that a transgender plaintiff may establish a claim for sex discrimination only through evidence that the defendant engaged in sex stereotyping,” the filing says. Citing rulings in similar previous cases, the federal agencies argued that the case should not be dismissed and the plaintiff should be given a chance to prove his claims.

“Under Title IX and the Equal Protection Clause, discrimination based on a person’s nonconformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes discrimination based on sex,” the statement of interest says.

And discriminating against a student because he or she has adopted a new gender identity is as much a violation of the law as discriminating against a student because he is male or female, the document says. The attorneys quoted a ruling from a previous case, which compared the issue to religious discrimination:

“Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion,’ ” a judge wrote in that ruling. “No court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.”

The federal agencies have made similar statements in previous civil rights guidance on other subjects, such as sexual assault on college campuses, but they haven’t responded to calls from LGBT student groups to release guidance that specifically details schools’ obligations under the civil rights laws. That’s left a gray area for some schools and contributed to the mistreatment of some transgender students, they’ve argued.

Leaders in districts like Los Angeles that have clear anti-discrimination policies that detail rules for issues like restroom access for transgender students have suggested that more open discussions about gender and sexuality have led to some students “coming out” as transgender earlier than they would have in the past, creating questions that many schools previously did not have to address.

Despite the insistence that Title IX applies to gender identity and sexual orientation, some federal lawmakers have pushed for a separate civil rights law for LGBT students.

The Student Non-Discrimination Act, which has been proposed in several sessions of Congress and endorsed by the White House, would create a broad federal prohibition against discrimination in public schools “based on actual or perceived sexual orientation or gender identity of students.”

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A version of this news article first appeared in the Rules for Engagement blog.