New Wine in Old Bottles: Title IX and Transgender Identity Issues

Abstract

This article addresses issues raised by the federal government’s enforcement/compliance guidance regarding Title IX. Under Title IX, recipients of federal funding may not discriminate on the basis of sex in programs or activities that receive federal funds. The guidance treats discrimination based on gender identity as equivalent to discrimination on the basis of sex, essentially defining gender identity as sex for purposes of Title IX enforcement/compliance. And gender identity is based on an individual’s internal sense of gender identity. The guidance builds on an earlier, comparable interpretation in an opinion letter issued by the Department of Education. This article notes that sex nondiscrimination and race nondiscrimination norms have diverged. Separate but equal has no place in the racial context. But Title IX, in contrast, embraces a regime of sex segregation, separate but equal. The area of sex-based competitive athletics is an example. The article investigates the important values that are promoted by sex segregation and observes that part of the rationale for a regime of sex segregation is not only to assure equality but also to provide protection of one sex from the other. For example, men are precluded from competing for women’s athletic teams; women are protected against that type of competition. But a regime of sex segregation cannot persist in the face of a regime of gender identity in which an individual’s gender identity is based on that individual’s subjective and internal sense of gender identity. To safeguard the values of sex segregation, there must be an opportunity for societally-determined criteria for determining one’s sex and a forum and a process for challenging insincere claims of gender identity or claims that do not appropriately accommodate the Title IX values promoted and protected by its regime of sex segregation. The article also concludes that the enforcement agency likely has authority to define “sex” in a way that is compatible with sex segregation and that does not threaten women’s competitive athletics, which could be an unforeseen victim of the approach taken in the enforcement/compliance guidance. The article also considers the special accountability provisions contained in Title IX and concludes that neither the original opinion letter nor the enforcement/compliance guidance comports with those requirements, which apply when the enforcement agency effectuates Title IX.