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Title IX & Student Conduct Code Blog

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Recent Court Ruling for Transgender Rights under Title IX

The debate regarding transgender individuals and public restrooms continues in many parts of the country, and schools and college campuses are often at the center of it. In fact, many school administrations have struggled to make appropriate decisions regarding transgender bathroom rights, especially when it comes to student-athletes and access to locker rooms. Some administrators have implemented policies that discriminate against transgender students, resulting in Title IX challenges to these policies in different parts of the U.S.

Why is This a Title IX Issue?

Title IX protects students from sex discrimination in federally funded schools and educational programs. The Department of Justice and Department of Education have specifically clarified1 that a student’s gender identity is part of their “sex” for the purposes of this law. This means that stereotyping a student based on their biological sex and forcing them to act according to that sex instead of their gender identity constitutes unlawful discrimination under Title IX. As such, forcing a student to use a restroom associated with a gender other than their identified gender is against the law. However, many school administrators are rejecting this guidance from federal agencies and continue to enforce unlawful transgender bathroom and lockerroom policies.

New 6th Circuit Decision Prohibiting Discrimination

The United States Federal Court of Appeals for the 6th Circuit recently ruled in favor2 of a transgender student from Ohio, stating that prohibiting her from using the girls’ bathroom would be sex discrimination in violation of Title IX. The lower court had also ruled in favor of the student and ordered the school to allow her to use the girls’ bathroom. The school unsuccessfully appealed that decision.

Issue Heading to the Supreme Court

The Supreme Court of the United States (SCOTUS) announced earlier this year3 that it would hear an appeal of a case out of the 4th Circuit4 regarding the bathroom rights of transgender students. That case involves a transgender teen who was prohibited from using the boys’ bathroom, and the Court of Appeals for the 4th Circuit ruled in favor of the teen. While that decision should have allowed the teen to use the correct bathroom, SCOTUS voted 5-3 to put that ruling on hold. Justice Breyer claimed he voted to stay the decision to “preserve the status quo”, which was that the teen could not use the boys’ bathroom.

However, it is uncertain whether SCOTUS stay will affect the most recent 6th Circuit case, as that student was already using the girls’ bathroom due to a favorable decision from the lower court. This means the status quo would be to continue to protect her right to use the bathroom she associates with her gender identity, which is in line with the 6th Circuit’s decision.

Concerns for the Future

While it may seem that Title IX is quite straightforward when it comes to how schools and colleges should protect transgender rights to bathrooms and locker rooms, there are concerns for these rights in light of the changing presidential administration. SCOTUS will not rule on the case out of the 4th Circuit until next year, when there may be an appointee to the Court who is against transgender rights. In addition, President-elect Trump appointed Betsy DeVos to serve as Secretary of Education in the coming term. DeVos is known for her anti-LGBTQ agenda, and many people fear she will issue new interpretations of Title IX provisions that no longer protect the rights of transgender students. We will keep a close watch on any new developments on this matter and keep you posted.

If you or your child has experienced any type of unlawful discrimination or harassment at a school or college anywhere in the U.S., please don’t hesitate to discuss your rights with our experienced Title IX attorney, Felice Duffy.

1https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-civil-rights

2http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0291p-06.pdf

3

4https://www.scotusblog.com/case-files/cases/gloucester-county-school-board-v-g-g/

Felice Duffy

Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.
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