Federal Court Rejects Title IX's Application to Transgender Restroom Case

Last month, a federal district court in Pennsylvania rejected claims that the University of Pittsburgh violated Title IX when it denied a transgender male student access to men's locker rooms and restrooms on campus. The court rejected the argument that discrimination on the basis of one's transgender status is incorporated into the scope of sex discrimination prohibited by Title IX and instead limited the meaning of sex discrimination to discrimination on the basis of one's biological sex. In reaching this decision, the court primarily relies on Ulane v. Eastern Airlines, an employment discrimination from the 1980s in which the Seventh Circuit court of appeals reached a similar conclusion about the scope of Title VII.  It also uses a similar mode of reasoning that the Ulane court employed, which was to emphasize that Congress did not have transgender students on its mind when it passed Title IX in the 1970s.  Though the court recognized that that definition of sex discrimination has been expanded in one particular way -- to include discrimination on the basis of sex stereotypes -- it concluded that was not the nature of discrimination alleged in this case because the plaintiff, whose natal sex is female, did not experience harassment or discrimination on the basis of his failure to dress in stereotypically feminine clothing.  Rather, the nature of the discrimination he faced was being treated differently from other men because he is a transgender man instead of a cisgender man.

Even though I think the court was right that this case did not present a sex stereotyping claim, by recognizing that such a claim would have been actionable, the court concedes that cases like Ulane are out of date and an inappropriate foundation on which to bases conclusions about the meaning of sex. If Title IX includes discrimination on the basis of one's gender presentation, as the Supreme Court has itself endorsed, it is not accurate to say that the law only prohibits discrimination on the basis of biological sex.  Several federal agencies and (so far only) one federal court have used that reasoning as a starting point for an even broader interpretation of sex discrimination that would have, had the court endorsed it here, provided a remedy for the plaintiff in this case.  For example, the EEOC recognized that discriminating against someone because of their transgender gender identity is a form of discrimination because of sex.  The Department of Justice and the Department of Education's Office for Civil Rights have endorsed this view as well, as evidence by the fact that they have brought enforcement actions against school districts in support of transgender students challenging their exclusion from sex-specific spaces (see also) and also filed briefs in support of students raising those arguments in court. Additionally, OCR's most recent guidance document about sexual violence also contained the sentence, "Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."

Unless or until the administration's more expansive definition of sex discrimination catches on with the judicial branch, educational institutions may have to contend with two standards for Title IX compliance: one that the courts apply in lawsuits brought by individual plaintiffs, and one that the government applies in its own enforcement actions. A school that excludes transgender students from sex-specific activities and facilities that accord with their gender identities may have less to fear from a student-initiated lawsuit, but could still be on the hook with OCR.  Such inconsistencies are not unheard of in the Title IX context.  For example, courts premise institutional liability for sexual harassment on a finding of deliberate indifference, while OCR has imposed a stricter and more specific standard.  As a practical matter, that means universities like Pittsburgh can continue to restrict transgender students single-sex spaces with little concern for injunctions or damages imposed by the court, but potentially risk being forced to change their policies in the context of an enforcement action by OCR. 

Decision: Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015).