Friday, February 27, 2015

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status.