In the last few years, trans students have used the court system to try and access a basic and critical right: bathrooms and locker rooms that conform to their gender identity, rather than those that correspond to their sex as assigned at birth. Often, these lawsuits rely on Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in all federally funded education programs and activities. Recently, however, the Alliance Defending Freedom (ADF)—a conservative legal group that represents anti-LGBTQ litigants with depressing regularity—turned this legal theory on its head to represent a student seeking to bar a trans student from using the locker room at his Pennsylvania high school.
Litigation over trans issues is always thorny, but has become exponentially more so in the wake of the election of President Donald Trump. In late 2014, the Obama administration issued a memo pursuant to Title IX that clarified protections for transgender students. That guidance reminded schools they could not discriminate against transgender students and that they must treat students based on gender identity, rather than the sex they were assigned at birth.
In February 2017, the Trump administration pivoted on this stance, throwing pending litigation into disarray. The U.S. Supreme Court had been set to hear the case of Gavin Grimm, a transgender high school student in Virginia seeking to use the bathroom that corresponds to his gender identity. After the Trump administration’s actions, the Supreme Court sent the case back down to the Fourth Circuit to consider it again in light of the new guidance. Additionally, at least five other federal district court cases remain active in which the respective courts have already ruled in favor of transgender student rights.
One of those cases was in Pennsylvania, where Pine-Richland High School had recently buckled to anti-LGBTQ pressure and reversed its longstanding policy of allowing students to use the bathroom that corresponded to their gender identity. Three students sued, seeking to have the policy reinstated. A Pennsylvania district court held in favor of the students but declined to address the case under Title IX because the legal climate around those claims is too murky right now.
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With the Trump administration’s actions injecting uncertainty into these sorts of legal proceedings, it was a perfect time for ADF to file a lawsuit based on a dubious reading of Title IX law and a deliberate and cruel misrepresentation of the rights trans students seek.
In Doe v. Boyertown, Joel Doe, a junior at Boyertown Area High School (also in Pennsylvania), sued the district over its policy of allowing students to use the restroom, locker room, and shower facilities that correspond to their gender identity. Doe alleges that he was forced to change next to “a member of the opposite sex … who was at the time wearing nothing but shorts and a bra.” Doe says this made him too anxious and embarrassed to regularly use the boys’ bathroom or change in the locker room.
In an ironic twist, the school’s attempts to accommodate Doe’s ostensible discomfort mirror what trans students are often offered: displacement and isolation. The school informed Doe he could use the nurse’s office to change clothes if he wants privacy. He was also informed that if he found it impossible to change in the locker room or the nurse’s office, he could consider being home-schooled. Doe, unsurprisingly, found these options unavailing and sued instead. The difference here is that Doe was experiencing discomfort, while offering those “accommodations” to trans students amounts to illegal discrimination.
ADF’s complaint on behalf of Joel Doe sneers at the notion of gender identity theory and then goes on to insist, as fact, that “the term ‘sex’ refers to one’s biological/anatomical status as either male or female. Sex is fixed at conception, binary, objectively verifiable, and rooted in our human reproductive nature.”
Implicitly, what ADF is saying here is that trans students cannot claim protection under Title IX because it only covers things related to sex assigned at birth. This interpretation, of course, completely disregards the scientific complexity of sex and the fact that it differs from gender. In addition, the notion that sex is “rooted in our human reproductive nature” is a Christian dog whistle: Sex exists only for procreation.
The complaint also includes information about child pornography, sexting, and how children receive heightened protections for criminal acts such as indecent exposure charges. These facts have nothing to do with this case, but it serves to create a false connection between trans students in locker rooms and adult criminal sexual conduct, echoing the damaging myth of trans people as “bathroom predators.” There’s no doubt this vicious language is deliberate.
The legal theory behind this complaint is as terrible as its theories about sex and gender. Trans students have been bringing—and winning—cases under the Title IX theory that its prohibition of discrimination on the basis of sex is not strictly limited to the notion of male/female binary “sex.” Instead, recent Title IX cases regarding trans individuals have tracked the same definitions of “sex” that Title VII, a similar federal law covering employment, uses. That definition has led to victories for LGBTQ people in the employment context, such as holding that Title VII prohibits discrimination against a transgender person who is gender–nonconforming; discrimination based on sexual orientation; and male-on-male sexual harassment.
Doe’s theory here is essentialism, pure and simple. It asks the court to disregard recent Title IX trends and, by extension, the Title VII trends, and hold that only biological males may use the boys’ locker room facilities because “the anatomical differences between the sexes is the reason that Title IX and its implementing regulations allow for separate living facilities, restrooms, locker rooms, and changing areas for each biological sex.” In other words, it’s a decision that seeks to undercut all the protective advancements made under Title IX and reduce it to nothing but a law that mandates the (biologically constructed) sexes be separated, and not necessarily even be treated entirely equally. The Trump administration’s reversal of the Title IX protections for trans students has clearly sent a signal that this sort of thing will be not only tolerated, but encouraged.
The school district, thankfully, has defended its actions in allowing the transgender student to use the boys’ locker room and appears committed to continuing to do so, even in light of the shift in guidance from the Department of Justice. Hopefully districts—and students—can continue to stand strong.