May I Use The Restroom? The Supreme Court’s Likely Opportunity to Define “Sex” in Title IX and End the Transgender Bathroom Debate

Abstract

The Supreme Court’s landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity. In 2020, the Fourth Circuit in Grimm interpreted “sex” under Title IX as including gender identity and sexual orientation, thereby establishing the right of transgender students to use the restroom that corresponds with their gender identity. The same year, the Eleventh Circuit reached an identical conclusion. However, the Eleventh Circuit subsequently vacated this opinion and granted a rehearing, suggesting that it will likely reach the opposite conclusion on rehearing. The Supreme Court could soon find itself in a position to settle a circuit split between the Fourth and Eleventh Circuits and should grant certiorari to uphold the rights of transgender students, regardless of what circuit jurisdiction they may live in or who the president may be.