Title IX and Transgender Students

On Friday of last week, May 13, 2016, the Obama Administration issued a new directive to clarify how and why sexual discrimination protections apply in schools throughout state governments.

Basically, the directive states because schools receive Federal funding, they are prohibited from sexual discrimination of students. The directive argues that, because of these conditions, “a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.”

Title IX, of course, is the federal law passed in 1972 which prevents any discrimination on the based of sex within any federally funded program or activity. With only a few exceptions, this law states that any entity in violation of such prohibitions could put that entity at risk for losing their federal funding.

Now, since the law passed in 1972, Title IX did not necessarily include a clause for transgender students. As such, though, the Obama Administration has been in support of a Title IX interpretation which includes those who identify as transgender. The office argues that gender expectations are tied to sex and this means that Congress de facto acted to include trans students in these protections even if this community was not explicitly mentioned at the time the law was originally drafted.

The directive continues, “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.”

Some states, you can imagine, are opposed to such legislation but the directive goes on to explicitly describe a process through which schools can deal with this very sensitive issue. Specifically, the directive orders that when a parent or guardian notifies a state that a student wishes to assert their gender identity, the school must immediately begin to treat the child accordingly. The directive does not require any medical diagnosis of gender dysphoria and, furthermore, the trans student does not need to have undergone any medical treatment or procedure to affirm gender.

At the same time, the directive continues to support traditional gender divisions within school athletics adding, however, that schools should not necessarily try to apply too broad generalizations about gender within their student body.