When Gavin Grimm starts his senior year on August 30, he’ll have to use the girls’ bathroom. Or a repurposed broom closet.
Gavin is a transgender boy. Last year, when he and his mom told school officials about his transition, the school agreed to treat him like the boy Gavin always knew he was. But the School Board objected, ultimately passing a regulation forbidding him from using the boys’ bathroom. Gavin sued and successfully got an injunction from the Fourth Circuit that prevent the Board from enforcing its new policy. But the U.S. Supreme Court, in turn, granted the Board’s request to keep the status quo in place until the Court decides whether to hear the Board’s appeal. So, while the Board works on its petition for review, Gavin’s got to use the girls’ room. Or that bathroom formerly known as a broom closet.
Gavin’s case is just one of several lawsuits in which transgender students’ rights are at stake. A district court recently put on hold the Obama Administration’s anti-discrimination policies for these students, which means Gavin’s predicament won’t be unique.
According to a Texas federal court, a joint policy guidance of the Departments of Education and Justice (ED and DOJ, respectively) overreaches—it redefines “sex” in a way that will cause unspecified harm to the nation’s school districts, not just the thirteen plaintiffs in the case before him. At the heart of this case, as well as Gavin’s, is what Title IX means when it prohibits discrimination based on “sex.”
What is “sex”?
The district says the answer couldn’t be plainer. When Congress enacted Title IX in 1972 it meant “the biological and anatomical differences between male and female students as determined by birth.” That’s probably true. But in the words of a legal mentor of mine: So what?
After all, as the court even acknowledged (and then dismissed…) that perspective changed. But importantly, it wasn’t just at ED and DOJ where the meaning changed.
The Supreme Court also changed its view.
In the landmark case of Price Waterhouse v. Hopkins, the Court determined that requiring people to conform to gender roles can violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination [as well as discrimination based on race, ethnicity, and religion]. In that case, accounting giant Price Waterhouse denied Ann Hopkins partnership because she was, in the words of her superiors, “macho.” And, worse—she failed to take their advice to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
In other words, Ann failed at being what the partners perceived as “woman.”
Relying on Price Waterhouse, at least four federal appeals courts since then have held that bias based on transgender status can be sex discrimination. So, thanks to Price Waterhouse, the law has been relatively clear since 1989 that sex discrimination isn’t just limited to distinctions based on biology.
The ED/DOJ letter cited Price Waterhouse, as well as the federal appeals court cases, to support its understanding of Title IX. Now, the state plaintiffs’ also have objected to the administration’s reliance on the employment discrimination statute. But there’s nothing new about looking to Title VII to understand the scope of Title IX’s proscription against sex discrimination. In Franklin v. Gwinnett County Public Schools, for example, the Supreme Court also looked to Title VII in explaining that sexual harassment could violate Title IX.
Both statutes are equally silent about sexual harassment, by the way.
Agency action, litigation, and court decisions helped put some meat on the bones of the law’s broad sweep against sex discrimination. The ED/DOJ transgender policy is yet another mile marker in understanding the law. And, not surprisingly, other agencies have followed suit. The Equal Employment Opportunity Commission, and the Department of Labor’s Occupational Safety and Health Administration also have issued publications about employers’ legal obligations regarding transgender workers. If the complaining school districts, as employers, were up to date on their responsibilities for teachers and staff, then the ED/DOJ policy shouldn’t have been a surprise to them.
And, better yet, students like Gavin wouldn’t have to wait on the courts to decide which bathroom they should be able to use.