We think it’s finally happening. Bold prediction: the issue of Title IX protection for transgender students will make it to the Supreme Court sooner rather than later. Practically speaking, more students are identifying as transgender. Anecdotally, several more Nebraska schools have contacted us this year seeking guidance on accommodating transgender students and the legal and policy considerations. At this point, every school should be thinking about how to respond to requests by transgender students and their families in terms of “when,” and not “if” the school receives such a request. Legally speaking, the Trump Administration is becoming much more aggressive in seeking to undo the Obama Administration’s added protections for transgender individuals, while the courts are going the opposite direction. Combine all that together, and we think we’re headed for a showdown in D.C. Here’s our evidence:
1. Transgender students are winning in court.
The most recent court decisions are almost uniformly siding with the transgender students. Three examples are Adams v. School Board; J.A.W. v. Evansville Vanderburgh School Corporation; and M.A.B. v. Board of Education. These decisions grant transgender students access to facilities consistent with gender identity, among other things. They are based on Title IX, but just as importantly the courts are also using the Equal Protection Clause (EPC) as their basis for siding with transgender students. Use of the EPC could signal how the issue ultimately will be decided, in much the same way the same-sex marriage litigation eventually led to the Supreme Court protecting the rights of same-sex couples to get married nationwide under the EPC.
At the same time transgender students are winning, students and parents filing lawsuits seeking protections from sharing facilities with transgender students are losing. A recent example is Doe v. Boyertown Area Sch. Dist.
2. The Trump Administration is redefining “sex” under Title IX.
Last week, the New York Times announced that the Trump Administration is proposing to define “sex” under Title IX to mean only biological sex and not gender identity. According to the Times report, the change would define “sex” to mean “a person's status as male or female based on immutable biological traits identifiable by or before birth." Also, "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." If the various federal agencies charged with enforcing sex discrimination laws take this position, it will complete the 180 degree turn away from Obama-era guidance documents.
3. The Trump DOJ just argued to the U.S. Supreme Court that protections on the basis of “sex” do not include an individual’s “gender identity.”
This is not surprising, but the timing is important. If you’ve been following this issue all along, you’ll remember that much of the discussion and interpretation of Title IX comes from cases decided under Title VII. Title VII is the law which prohibits employers from discriminating against employees on the basis of sex (including gender norms), religion, race, etc. About a year ago, the Trump Department of Justice (DOJ) released a memo stating that Title VII’s protection from discrimination on the basis of “sex...does not prohibit discrimination on based on gender identity per se.” Yesterday, the DOJ argued to the Supreme Court in a Title VII case that the prohibition against sex discrimination does not protect gender identity. This is obviously consistent with the new Trump Administration positions on Title IX.
4. There will be new Title IX regulations soon, probably.
A few weeks ago, the Times also reported that the U.S. Departments of Education and Justice will be issuing new Title IX regulations related to investigating complaints of sex-based discrimination and harassment. Among other things reported, the new regulations would increase protections for accused students and reduce liability for universities (and presumably K-12 schools). The new regulations similarly propose to reverse Obama-era guidance, such as the requirement to investigate Title IX complaints even if the conduct occurred off-campus and not at school activities. Maybe they will also contain new definitions of “sex” or explicitly exclude “gender identity”....
What does it all mean? We see fireworks on the horizon, and there may be a race to the Supreme Court between families seeking protections under existing law/regulations and the Trump Administration seeking to change the regulations and argue for “administrative deference” from the courts. Practically speaking, file these things away in the “probably going to require policy changes again this year” category. We’ll be tracking all of these issues and, if necessary, will provide our KSB Policy Service subscribers with updates this summer (after the long Unicameral session) or sooner if necessary.
Despite all of this flux, our position has never changed. We continue to advise clients to take two practical steps regarding transgender students: (1) avoid making sweeping policy or procedure decisions until the law becomes more clear; and (2) work collaboratively with transgender students and their families to see if there is a way to accommodate the student’s requests without triggering either a federal lawsuit or a strong political reaction. Title IX is an individualized protection law. Treating all transgender students the same (such as by a sweeping policy declaration) would be no different than assuming all sexual abuse victims need exactly the same support. Every student in our state deserves a safe and supportive learning environment, but the way to achieve that may be different based on the unique needs of individual students. We continue have schools succeed in navigating these tricky issues by meeting with students and families to talk through the difficult issues on an individual basis. We believe that, versus a standard policy response, is more consistent with Title IX in the first place.
If you have any questions about these or other Title IX compliance areas, you should contact your school district’s attorney, or contact Karen, Steve, Bobby, Coady, or Mandy.