Title IX

  • February 27, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law

    Donald Trump last week rescinded the Obama administration’s guidance to schools concerning their obligations to transgender students. This change in federal policy now requires the Supreme Court to decide whether and how to deal with its first major transgender rights case, which involves a transgender Virginia high school boy, Gavin Grimm.   

    We should hope that the Court decides to abstain and to dismiss the case as improvidently granted. That outcome would preserve Grimm’s victory in the lower court and avoid the potentially damaging results of the justices entering this fray too soon. Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future. 

    Unlike the four major gay/lesbian rights victories the Court handed down between 1996 and 2015, culminating in nationwide marriage equality, this case, Gloucester County School Board v. G.G., is not about grand constitutional principles like equality and liberty. The Trump administration’s action removed the primary issue in the case, which was one of administrative law: whether lower courts should have deferred to the Obama administration’s view that Title IX, the federal statute that was originally enacted to afford women equal opportunity in education, requires schools to allow transgender students to use restrooms and locker rooms that are consistent with their gender identity rather than their biological sex. 

    With the administrative law question now moot, the Court could still decide the case as a matter of statutory interpretation: that is, regardless of the executive branch’s shifting policy views, how should Title IX apply to transgender students’ ability to use sex-segregated facilities? But by asking the parties for their views on how to proceed, the Court last week signaled it may at least be thinking about dismissing the case.

    The Court should do so. Grimm won in the Fourth Circuit, but his lawyers from the ACLU opposed certiorari and argued that it is too soon for the Supreme Court to authoritatively settle the Title IX question one way or the other. As other courts of appeals consider similar cases, Grimm’s attorneys wrote, those courts “will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.”

    There is a strong body of case law in the lower federal courts that a statute passed to combat sex discrimination can also be used to combat discrimination on the basis of gender identity. But almost all these cases involved adults in the context of employment discrimination. Grimm’s case is the first involving transgender students, schools and restrooms.

  • February 23, 2017
    Guest Post

    by Harper Jean Tobin, Director of Policy, National Center for Transgender Equality

    Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.

    There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K­­–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities. 

    Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.

  • December 4, 2012

    by Jeremy Leaming

    When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    Title IX, in part, states, “No 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 ….”

    Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

  • June 22, 2012
    Guest Post

    By Lolita Buckner Inniss, a professor at Cleveland-Marshall College of Law. This is a cross-post from the blog, Ain’t I a Feminist Legal Scholar Too?


    This June marks the 40th anniversary of Title IX. Its principal provision reads as follows:

    No 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.

    Educational institutions from primary schools to universities who receive federal funding are subject to the law. Title IX is best known for having transformed the arena of women’s sports. Title IX, however, has a much broader reach: it applies also to sexual violence and sexual harassment. One of the more controversial aspects of Title IX jurisprudence is that sexual harassment is not only defined by persistent behavior but may also be found in a single episode. This latter fact is the subject of numerous critiques. But what is sometimes missed in such criticism is the full nature of even a “single episode” of harassment, especially within educational institutions.

  • April 28, 2011
    Guest Post

    By Neena Chaudhry, Senior Counsel, National Women’s Law Center


    On Monday, The New York Times released a poll, in conjunction with CBS News, showing that nearly half of Americans who are familiar with Title IX believe it needs stricter enforcement.

    The survey was conducted last month, but it would have been very interesting to see what the results would have been if respondents had first read the other New York Times Title IX piece that ran the same day: “College Teams, Relying on Deception, Undermine Gender Equity.” The article goes on to describe how athletic programs across the country manipulate their athletic rosters to artificially boost women’s participation numbers in order to claim compliance. 

    Title IX requires that schools receiving federal funds not discriminate on the basis of sex, including in sports.  Most Americans think it’s been doing a good job.  In the same Times/CBS poll, 78 percent of people familiar with Title IX said they believe it’s been a positive force for women’s opportunities in sports.

    It’s easy to see why. Since Title IX’s passage in 1972, women’s participation in collegiate athletics has increased to nearly six times the pre-Title IX rate. Multiple generations of girls have grown up shooting hoops and scoring goals, going on to earn college scholarships and represent their schools in competition.  

    Despite this progress, women still lack access to equal opportunities.  According to the NCAA, women in Division I colleges, while representing 53 percent of the student body, receive only 45 percent of the participation opportunities, 34 percent of the total money spent on athletics, 45 percent of the total athletic scholarship dollars, and 32 percent of recruiting dollars.