Fifteen Eighty Four

On February 22, 2017, the Trump Administration withdrew guidance issued by the Obama Administration on access to public school bathrooms for transgendered students. The Obama Administration guidance explained that Title IX of the Education Amendments of 1972 requires that schools receiving federal funding allow transgendered students access to the bathroom corresponding with their gender identity. The withdrawal of this guidance raises questions about the rights of students to access bathrooms corresponding with their gender identity. I will try to explain here what the recent action by the Trump Administration does and does not do.

With or without the guidance the underlying question remains the same: Does Title IX protect access by transgendered students to the bathroom corresponding with their gender identity? The Obama Administration guidance provided an answer to this question from the Executive Branch and it provided guidance for schools receiving federal funds, but it did not answer the question for the courts. The withdrawal of that guidance also does not answer the question for the courts. It does, however, leave a void in regard to federal guidance as explained below.

Title IX prohibits schools receiving federal funding from discriminating based on gender. The Obama Administration guidance stated that Title IX protects against discrimination based on gender identity and related gender stereotyping. This is an argument accepted by some federal courts under Title VII of the Civil Rights Act of 1964, which applies to employment. More importantly, it is an argument accepted by the United States Court of Appeals for the 4^th Circuit in a case that was before the United States Supreme Court prior to the Trump Administration’s withdrawal of the guidance.

In fact, perhaps the biggest impact of the Trump Administration’s withdrawal of the guidance is that on March 6, SCOTUS remanded that case back to the Federal Court of Appeals for the 4^th Circuit. The reason for the remand is that the United States Court of Appeals for the 4^th Circuit cited the Obama Administration guidance in holding Title IX protects transgendered students’ access to the bathroom corresponding with their gender identity; although it relied on far more than the guidance. Thus, rather than receiving an answer from SCOTUS about whether Title IX protects the rights of transgendered students to access the bathroom corresponding with their gender identity, each state and possibly school district, must now make that call, potentially leading to numerous lawsuits.

So does Title IX protect transgendered students’ access to the bathroom corresponding with their gender identity? The United States Court of Appeals for the 4^th Circuit thought so, and with good reason. Gender identity by its very nature is based on notions of gender and what traits are stereotypically associated with gender. Title IX prohibits discrimination based on gender and gender stereotyping so there is a powerful argument that it prohibits discrimination based on gender identity. In the absence of any credible data suggesting bathroom access based on gender identity poses a serious threat to safety that can not be addressed by non-discriminatory means (and contrary to some sensationalized arguments there is no such data), Title IX should be interpreted to protect bathroom access for transgendered students based on gender identity.

One final note. As you may know, in Freedom’s Edge: Religious Freedom, Sexual Freedom and the Future of America (Cambridge 2016), I argue for protecting both religious freedom and sexual freedom to the greatest extent possible. I want to be clear that access to bathrooms under Title IX has no impact on religious schools. Title IX has an exemption for religious entities that can be found in Section 1681, which prohibits gender discrimination:

“(3) Educational institutions of religious organizations with contrary religious tenets: this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”

Therefore, religious schools would and should not be bound by any interpretation of Title IX regarding bathroom access. Some religions already support bathroom access based on gender identity and others don’t. That is a religious decision, and whatever the ultimate decision is under Title IX, religious institutions will remain free to address the issue according to the tenets of their faith under federal law.