Mitigating the 'LGBT Disconnect': Title IX’s Protection of Transgender Students, Birth Certificate Correction Statutes, and the Transformative Potential of Connecting the Two

Abstract

In recent years, transgender Americans have become more visible, thanks to the work of the transgender community and LGBT-rights organizations; as well as the emergence of transgender celebrities in popular culture and the media. One result of this increased visibility is the greater number of children coming out as transgender. With more openly transgender children and adolescents, schools are tasked with creating safe and inclusive learning spaces for transgender youth--a task that often proves difficult given political hostility grounded in transphobia. It was not until the 1990s and into the early 2000s that gay and lesbian organizations broadened their agendas to include transgender issues and transgender-specific civil rights organizations were born. This increased visibility has led LGBT-rights organizations to develop strategies--from community-based to nationally focused--to fight against rampant discrimination. Two of these recent, important legal reform movements are the subject of this Article: (1) legal challenges to identity document correction laws in those states that require Gender Confirmation Surgery (GCS), including laws regarding the correction of birth certificates, and (2) Title IX actions asserted by K-12 students seeking to use sex-segregated facilities, particularly restrooms, that align with their gender identity. While scholars have analyzed and theorized about these issues separately, this project is the first to unite them. A number of states require GCS before one may correct the gender marker on one’s birth certificate; others do not permit the correction of a gender marker on a birth certificate under any circumstance. There is little scholarship that takes a comprehensive analysis of the constitutional deficiencies of these policies, namely Due Process, Equal Protection, and First Amendment issues. This Article builds on existing scholarship to offer that comprehensive doctrinal analysis. The birth certificate correction issue intersects directly with the Title IX issue of transgender students’ access to gender-affirming, sex-segregated facilities. In a recent Wisconsin Title IX case, the defendant school district argued that the transgender student would be prohibited from using a gender-affirming restroom unless he could provide “legal or medical documentation.” The availability of a corrected birth certificate would have satisfied the school district’s requirement; however, because GCS is unavailable to minors, surgical requirements preclude school-aged students from obtaining the surgery necessary to correct their birth certificate. There is thus a synergy between the challenges to GCS-required birth certificate policies and the availability of Title IX relief for transgender students regarding the use of sex-segregated facilities. Until now, there has been little or no crossover, in terms of advocacy or organizing, between these two movements. On the issue of facilities access for transgender K-12 students, the path of least resistance--and thus speedy and complete relief--is the presentation of a corrected birth certificate to school officials. This is because most schools rely on the sex assigned at birth (and thus indicated on the birth certificate), rather than on the student’s gender identity, to decide which sex-segregated facilities the student must use. Thus, an analysis of the surgical requirement issue alongside a Title IX analysis is helpful in illuminating the path to relief for these students.