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In recent years, claims brought by transgender students requesting accommodations from a public school have been framed under Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding. Although the statutory language does not specifically include discrimination on the basis of gender identity, a number of advocates argued that gender identity was encompassed by the term sex, and a number of federal courts agreed. More notably, in May 2016, the Department of Education (“DOE”) issued a “Dear Colleague” letter interpreting the statutory language to include discrimination on the basis of gender identity, specifically noting that Title IX thus prohibits discrimination against transgender students. Given the seemingly changing tide in agency interpretation, as well as an increasing number of courts agreeing, the statutory argument dominated new claims.
With the change in presidential administrations, however, came a sharp about-face in agency reading of the statute. In February 2017, the DOE withdrew the prior letter, and subsequently announced that the Department would no longer represent transgender students and their claims. At around the same time, then-Attorney General Jeff Sessions issued a memo stating that the similar statutory language forbidding employment discrimination because of sex in Title VII of the Civil Rights Act of 1964 did not apply to discrimination against transgender employees. The Trump administration agencies presented a united front that the term “sex” meant solely biological sex, and not gender identity.
Given the changing interpretation of Title IX, both statutory and constitutional arguments supporting the right of public school students to express their gender in any manner contrary to traditional gendered norms have renewed vitality. In the decades since Stonewall, students facing school discipline for nonconforming gender presentation that violated school dress codes have attempted to challenge the dress codes as violating their First Amendment free expression rights. Tracing these arguments is not only helpful as a historical exercise, but also to present alternative arguments under an unsympathetic presidential administration and Supreme Court. In today’s world in which the Trump administration targets transgender students, employees, and service members, one strategy is to embrace gender nonconformity for cisgender, transgender, and nonbinary students all at once, in the hopes that thinking about the expression rights of students will be a more fruitful approach than just relying on Title IX.
Dara E. Purvis*
*Professor, Penn State Law; J.D., Yale Law School; M.Phil., University of Cam- bridge; B.A., University of Southern California. Thanks to Athena Dufour, Chris Marple, and Kellen Shearin for extremely helpful organizing and editing.