The Arcadia School District in California has agreed to allow a transgender ninth grader to use male restrooms and locker rooms and to “otherwise treat the student as a boy in all respects.” The student has a male gender identity and has been living as a boy since the fifth grade. With the help of the National Center for Lesbian Rights, he filed complaints with the Department of Education and the Department of Justice, alleging that the district violated Title IX by denying him access to boys’ facilities at school, and by not allowing him to share a cabin with other boys on a school-sponsored camping trip. The voluntary resolution agreement announced this week ends the agencies’ joint investigation into the matter. Under the agreement, the school district must treat the student as a boy going forward, as well as amend its policies to ensure that other transgender students’ gender identities receive similar respect. By entering into this agreement, the school district preempts any formal findings that it was in violation of Title IX.
This case is significant because it represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity — i.e., treating a transgender student who identifies as male differently from other, non-transgender students who identify as male. Implicit in the Department’s willingness to extend its enforcement power to a case like this is the agency’s broad definition of what it means to discriminate on the basis of sex. It is not an entirely novel interpretation, however. The Department of Education may have been influenced by a similarly broad definition of sex discrimination which appeared earlier this year in a ruling by the EEOC in the analogous context of employment discrimination. There, the agency agreed to accept jurisdiction over a case involving a transgender complainant who was passed over for a job, reasoning that whether because the discrimination was based on the complainant’s gender nonconformity, change of gender, or transgender gender identity, the case was one of sex discrimination and needed to be treated as such.
Now that the Department of Education has demonstrated that it is willing to extend its Title IX enforcement power to transgender gender-identity discrimination cases, it is likely we will see more such cases in the future.