In recent years, there have been increasing concerns involving discrimination faced by the transgender community.  Not surprisingly, these concerns have centered on the challenges faced by gender non-conforming students and whether the needs of such students are being met by school officials.  Though the law on gender identity is still in its relative infancy, schools are now mandated to create and maintain a safe school environment free from discrimination on the basis of gender identity and expression under Connecticut law.  Though the relevant federal civil rights laws do not expressly extend to gender identity or expression, it is increasingly clear that the federal government has taken the position that there is protection for gender non-conforming students under federal law.  For example, last month, the U.S Departments of Education and Justice (the “Government”) jointly filed a “Statement of Interest” challenging a school district’s legal contention that a transgender student may only establish a claim of sex discrimination based on evidence of sex stereotyping.

In his complaint, the plaintiff, a student presenting as male, alleged that school officials refused to allow him to use male restrooms, and instead, required that he use a female staff or a unisex restroom, which resulted in peer harassment. The plaintiff also alleged that school officials revealed his status to members of the school community by repeatedly using his birth name and female pronouns when referring to him. Moreover, the plaintiff alleged that after his mother expressed concerns to school officials, an administrator told his mother she was “being overly sensitive.”

In defense, the school district filed a Motion to Dismiss arguing that the evidence proffered by the plaintiff was insufficient to establish a claim of sex discrimination.  In challenging the school district’s argument, the Government argued that Title IX provides protection for transgender students.  More specifically, the Government asserted that “[u]nder Title IX and the Equal Protection Clause, discrimination based on a person’s non-conformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes [sic] discrimination based on sex.”

First, the Government argued that the relevant suspect classification in the plaintiff’s case is sex—not transgender status.  In so arguing, the Government urged the court to reject the school district’s narrow reading of the statute and its attempt to use Title IX as a sword by merely affixing a transgender status on the plaintiff in order to immunize itself from liability.

Second, the Government contended that gender identity discrimination is a form of sex discrimination.  To build support for this argument, the Government made clear its belief that gender identity discrimination is actionable under Title IX since “an individual’s gender identity is one aspect of an individual’s sex.” Cf. Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629 (1999) (applying OCR’s Title IX guidance when evaluating Title IX’s application to peer-to-peer harassment).  As such, the Government argued that to focus on the term “transgender” is an untenable approach to statutory construction as it disregards the common understanding of the term “sex.”  Additionally, the Government bolstered its position by highlighting that “[f]ederal courts routinely look to Title VII case law in construing the Title IX’s anti-discrimination provisions.” See e.g., Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (denying a motion to dismiss Title VII claim brought by a transgender individual) and Kastl v. Maricopa Cnty. Comm. College Dist., No. Civ.02-1531PHX-SRB, 2004 WL 2008954, aff’d, 325 Fed. Appx. 492 (9th Cir. 2009) (denying motion to dismiss Title VII and Title IX sex discrimination claims).

Third, the Government proclaimed that the plaintiff alleged sufficient evidence to establish a sex discrimination claim based on sex-stereotyping.  In particular, the Government relied on the plaintiff’s allegation that school officials denied him access to male restrooms based his failure to conform to school officials’ expectation of a “male” student.  And lastly, it followed from the Government’s third contention that if plaintiff’s pleading is sufficient, then “the burden [ ] would shift to [the school district] to demonstrate that its actions were legitimate, nondiscriminatory, and not pretextual under Title IX….”

The Government has made its position on gender non-conformity clear, and this position will undoubtedly impact both agencies’ enforcement activities.  While the Government’s position does not (yet) have the force of law, schools now have additional information to inform how they address the needs of gender non-conforming students.

Recent articles discussing the challenges faced by members of school communities in addressing gender nonconformity may be found here and here.