The federal government currently provides no guidance on supporting transgender students under Title IX.
On February 22, 2017, the US Departments of Education and Justice rescinded their guidance on supporting transgender students.
On April 24, 2014, the United States Department of Education had issued a Dear Colleague letter to every school district in the United States declaring their guidance that gender identity is a protected class under Title IX.
On May 13, 2016, the United States Departments of Education and Justice had issued another Dear Colleague letter to every district further clarifying the protections and full access to a public education to be provided for transgender students, in order to comply with Title IX.
Guidance issued from the United States Department of Education was not statutory law, but rather the federal agency’s interpretation of existing law. Guidance from federal agencies is usually given significant weight in the interpretation of laws they are charged with enforcing. There are no standing federal laws explicitly stating gender identity protections in school. While broad non-discrimination policies are often enacted on the federal level, education policy is largely set at the state and local level.
On August 21, 2016, a federal district judge in Texas had placed an injunction on the US Department of Education to enforce the guidance issued in May, as a several states have sued the US government over the guidance. This injunction was re-affirmed in October.
A landmark case on trans student civil rights, Grimm v. Gloucester School Board, based in part on the initial guidance, was appealed up to the US Supreme Court but remanded back down to the district court, and is now back in federal appellate court.
The Boyertown case was a major case decided in Pennsylvania, with a final win issued in 2019. In 2017, several cisgender students sued the Boyertown Area School District, located in southeastern Pennsylvania, claiming a constitutional violation of “privacy” and Title IX violation as the school provided for trans student inclusion in practice. The school district defended against the lawsuit, and the Pennsylvania Youth Congress Foundation intervened in the case, representing the Boyertown Area Senior High School GSA. Our lawyers were the ACLU of Pennsylvania and the ACLU. We prevailed in the district court and the US Court of Appeals for the 3rd Circuit. Ultimately, the plaintiffs appealed to the United States Supreme Court, but they denied review in May 2019, allowing the lower court rulings to stand. Essentially, this case sets precedent that if a school provides for trans student inclusion, and are sued on similar grounds, they are likely to withstand the lawsuit and win. However, it does not require school districts in Pennsylvania to guarantee trans student inclusion.
The Pennsylvania School Boards Association provides a thorough, regularly update on federal and state developments on trans student inclusion here.
What is Title IX?
Title IX of the Education Amendments of 1972 declares it is unlawful for the federal government to fund education programs or activities that discriminate on the basis of sex. Title IX states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Title IX has expressed itself in ensuring women have full and equal access to scholastic athletic opportunities as to men. The Department of Education has interpreted the ban on discrimination on the protected class of sex, to extend to gender identity, as it relates to sex stereotyping. In 2014, the Department of Education recognized that the core of sex discrimination is rooted in discriminatory expectations of how individual must embody masculinity or femininity, or sex stereotyping. With this understanding, gender identity and expression is included as a protected class under Title IX.
Title IX and Pennsylvania Schools
According to the Pennsylvania Department of Education, Pennsylvania schools rely on over $1 billion each year in federal funding. Violating Title IX could cause the federal government to pull its funding from an individual school entity. In accepting federal funding, a school entity is essentially signing a contract that they will follow the parameters set by the federal government, including Title IX and how the Department of Education provides guidance on the law. With 500 Pennsylvania school districts, an individual school district can rely on millions of dollars in federal money attached to Title IX.