On Friday, President Donald Trump’s Justice Department signaled that it may be reversing the Obama administration’s position on whether transgender students should be permitted to use facilities consistent with their gender identity. In a filing with the 5th Circuit Court of Appeals, the Justice Department withdrew a motion seeking to partially stay a Texas federal district court injunction to guidance issued by the Obama administration that treated a student’s gender identity as the student’s sex for purposes of Title IX and its regulations. More explicit repudiations of protections for transgender people are likely on the horizon, despite Trump’s campaign rhetoric suggesting that transgender people should be permitted to use bathrooms consistent with their gender identity.
But as Trump has been learning in other contexts, a change in position by the executive branch is not the final word on this issue. The Title IX statute, as interpreted by the courts, controls the outcome. As numerous cases have already recognized, the prohibitions on sex discrimination contained within federal civil rights statutes do extend to protect transgender individuals—irrespective of what the Trump administration may say about it.
There are several reasons for this.
Title IX of the Educational Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” But the text is silent as to how “sex” is to be defined. And while the Department of Education regulations implementing Title IX sanction “separate toilet, locker room, and shower facilities on the basis of sex,” the regulations also don’t define “sex.”
What have courts said about such language? Long before the current bathroom controversy and long before the Obama administration issued its guidance, courts have taken a broad view of what constitutes sex discrimination under federal civil rights statutes.
Courts—including the Supreme Court in a case called Price Waterhouse v. Hopkins—have concluded that sex discrimination includes discrimination based on sex stereotypes—that is, treating someone differently based on a failure to adhere to majoritarian norms or stereotypes about how a person of a particular sex should behave. Even Justice Antonin Scalia recognized that same-sex harassment—for example, where a man was harassed by other men—could constitute sex discrimination. As Scalia noted in Oncale v. Sundowner Onshore Services, Inc., while male-on-male harassment arguably wasn’t on the top of Congress’ mind when it passed Title VII, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
And, while not uniform, several federal courts of appeals specifically addressing the treatment of transgender individuals under federal sex discrimination statutes have also provided robust protection for transgender individuals. For example, the 6th Circuit held that a transgender woman could bring a sex discrimination claim when she was allegedly penalized for expressing a more feminine appearance, and the 9th Circuit held that a transgender woman could bring a claim under the Gender Motivated Violence Act when she was allegedly attacked for being transgender. Other federal courts have reasoned similarly.
These court decisions lend support to the idea that the best interpretation of the meaning of “sex” under Title IX is to include protection for transgender individuals and that a person’s sex is determined by their gender identity. Even dictionary definitions of sex in the 1970s suggested that sex was the “sum” of both physiological and behavioral characteristics. And since that time, our medical understanding of sex and gender has become even more nuanced, with science suggesting that factors contributing to one’s sex are multifaceted, including “external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics, and genes.” There is no one defining “biological” characteristic. All of our bodies are different.
Moreover, as the 4th Circuit Court of Appeals concluded in its decision to, in effect, permit Gavin Grimm, a transgender boy, to use the boys’ restrooms (a decision that is now being considered by the Supreme Court), the alternative interpretation of sex as “biological sex” offered by those opposing transgender access creates more ambiguity than it resolves. As the 4th Circuit reasoned: “For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident?” An interpretation of sex that looks to an individual’s gender identity “resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.” In other words, defining sex in terms of gender identity is the only interpretation that actually avoids inconsistencies and creates a uniform rule. As such, it is the best reading of the statute.
While it is true that these arguments in favor of transgender equality were bolstered by the Obama administration’s favorable interpretation of Title IX’s regulations as protecting transgender students, transgender bathroom access never hinged on the administration’s interpretation or guidance. And though the Obama administration’s interpretation was entitled to some degree of deference (known as Auer deference) because it was in accord with the statutory and regulatory language, the Trump administration’s portended interpretation will likely not be entitled to deference. This is because defining sex with reference to supposed “biological sex” conflicts with the best reading of the statute/regulation and is not a permissible reading, and because when an agency’s interpretation conflicts with a prior interpretation, the new interpretation is less likely to receive deference.
The Trump administration’s change in position could have an impact on the Gavin Grimm case, which, as Laverne Cox pointed out last night at the Grammys, is to be argued before the Supreme Court next month. There, the court is slated to address whether the Obama administration’s interpretation of the Title IX regulations as protecting transgender students is entitled to deference and, if not, whether Title IX nevertheless protects transgender students. Should the Trump administration formally change its position, the court could avoid the issue of deference in light of the change in the administration’s position, but it should nevertheless rule in Grimm’s favor based on the best interpretation of Title IX as including protection for transgender individuals.