Today I read two recent law review articles that warrant mention on this blog. The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former. In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities. Levasseur challenges courts to follow suit. By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.
In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures -- aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities. Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.
M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).
Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)