Transgender Title IX

A Title IX attorney will advise that as of today schools in Connecticut will not violate federal law if they tell transgender students to use the bathroom of the sex they were born with.

Title IX itself says nothing about the choice. Starting in 1972 it simply outlawed discrimination “on the basis of sex.” A regulation later added only that public schools must offer separate bathrooms, lockers and showers. No authority ever made clear who should use which ones.

CHOICE UNDER OBAMA

President Obama tried to. In 2015 his administration decided that the words “on the basis of sex” meant schools must let a student choose which sex they identify with. 

In April 2016 a federal appeals court in Virginia ruled that a high school had to let a transgender student born a girl use the boys’ bathroom. It decided that “on the basis of sex” was ambiguous and could be interpreted however the President wished. Others disagreed. In August a different federal court, in Texas, took the opposite stance. It held that the phrase was not ambiguous. Obama could not tell schools to read it his way.

PRESIDENT TRUMP

With a new President came a new position. In February 2017 the Trump administration made Justice and Education withdraw their earlier interpretation. They have not issued a new one. That leaves schools free to declare that “on the basis of sex” means biological sex. The United States Supreme Court took note of the change in interpretation. It had agreed to hear the Virginia case, but after the change it sent the case back to the lower court.

Since then a third court has formally decided the meaning of “on the basis of sex.” A federal appeals court in Chicago ruled that a transgender student in Wisconsin could sue for an order allowing them to use the boys’ bathroom. It stated that “sex” could mean the one with which they identified. The Wisconsin school district has appealed the case to the Supreme Court for a definitive ruling. Until that happens, schools are free to interpret the statute however they wish.