Title IX was put into law by President Nixon as part of the Higher Education Act of 1965. It outlaws discrimination against students on the basis of sex by institutions receiving federal funding, with a number of exemptions to the law (including religiously affiliated institutions for which the guidelines would be inconsistent with the religious tenets of such organization, boy/girl conferences, gendered organizations, military training schools).
In 2016 the Obama administration sent out a “Dear Colleague” letter which acts as an interpretation of Title IX for schools to follow. The “Dear Colleague” letter specifically addresses protection for transgender students covering the correct use of pronouns, name, confidentiality of a trans student’s situation, and bathroom access. It is notable that this was all covered without the need of a medical diagnosis of dysphoria. This allows all students, no matter their access to a doctor willing to diagnose them, to get these protections (Lhamon and Gupta). However, the 2016 “Dear Colleague” letter was never an official law, but rather an interpretation of Title IX: “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations” (Lhamon and Gupta). These protections relied on either schools complying on their own or students and parents to sue and win in a court of law. They were never something that the president could enforce; merely suggest with the understanding that the courts would back him up. The guidance has been since withdrawn by the Trump administration. The National Center for Transgender Equality states that while Trump’s withdrawal of the 2016 Dear Colleague Letter “does not change any of your rights under Title IX, it does mean that the Department of Education might not investigate or respond to complaints from transgender students or enforce the law as fully as they should” (“Know Your Rights: Schools”).
Title IX is the farthest reaching and most influential sexual discrimination law in the U.S., which is why, although there are many local and state level laws protecting trans students, I want to talk about this one. For many trans kids, title IX is the law protecting them, and what was protecting them was not even really the law itself. Many people disagreed with this reading of Title IX because the language of Title IX is forty years old and does not recognize a difference between sex and gender. As such, you could read Title IX either way. It is a law that means to protect and treat all students equally no matter what their gender, but it also does not apply to single gender institutions (such as the boy scouts) and does not require schools to unify sports teams into one ungendered and unbiased sports team, which you could say is an extension of providing cisgender students with safe single gender space. You could also say that the letter of the law says that discrimination on the basis of sex is illegal, but these are transgender issues. In one of the cases where Title IX’s trans* protections came into question, the school board “had argued in essence that its policy was valid because Title IX allows for claims only on the basis of sex, rather than gender identity, and that its policy did not violate the equal protection clause” (The New York Times). I would argue that the spirit of the law supports is one of inclusion, but Title IX was not made in our time, and strict readings of it could go either way depending on what outcome a judge or school wanted. Which is why Obama’s 2016 Dear Colleague Letter was so important, it was specific and told trans Americans that the justice department recognized the ambiguity of the law in its modern context.
Despite its shortcomings, Title IX is better than nothing. While Title IX has been around since the 60’s, it has only recently been interpreted as a gender equality law (as opposed to a sex equality law) and through it a number of transgender students have successfully sued their schools for failing to protect them. And thus only recently made their schools a safer place for trans students who before would have no expectation that their schools must legally protect them.
Gordon, Demoya. “Lambda Legal Applauds New Federal Guidance on Transgender Students’ Access to Bathrooms.” Lambda Legal, 13 May 2016. https://www.lambdalegal.org/blog/20160513_new-guidelines-trans-bathrooms. Accessed 1 Dec. 2018.
“HOW THE LAW PROTECTS LGBTQ YOUTH.” Lambda Legal, https://www.lambdalegal.org/know-your-rights/article/youth-how-the-law-protects. Accessed 1 Dec. 2018.
Lhamon, Catherine E., and Vanita Gupta. “Dear Colleague Letter on Transgender Students.” U.S. Department of Justice and U.S. Department of Education, 13 May 2016. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Accessed 1 Dec. 2018.
“OVERVIEW OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, 20 U.S.C. A§ 1681 ET. SEQ..” The United States Department of Justice, Updated August 7, 2015. https://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq. Accessed 1 Dec. 2018.
“Title IX Protections for Transgender Students.” Find Law, https://education.findlaw.com/discrimination-harassment-at-school/title-ix-protections-for-transgender-students.html. Accessed 1 Dec. 2018.
Stevens, Matt. “Transgender Student in Bathroom Dispute Wins Court Ruling.” The New York Times, 22 May 2018. https://www.nytimes.com/2018/05/22/us/gavin-grimm-transgender-bathrooms.html. Accessed 1 Dec, 2018.