Does Title IX protect either the respondent of sexual misconduct or the complainant of sexual misconduct when either the respondent or the complainant is transgender?
Yes it does! The very fluid nature of the set of experiences contained in the term transgender makes for a fluid set of demands on Title IX—a statute that is anything but fluid. (1) Title IX, famously the tool that women used to increase their participation in school sports, and now the one that men use to defend themselves when wrongly accused, or cruelly prosecuted for student sexual misconduct, (2) needs to be prodded, hard, to protect the rights of Trans students. This group includes students whose gender identity is the opposite of their assigned sex, non-binary and gender fluid students as well as those students who simply see themselves as a third gender. Title IX’s response will vary depending on the role of the transgender participant and the school’s perception of the validity of the transgender student’s sexual identity. I suspect that a school will be male-biased against a Trans student who presents as male and receives a complaint of sexual misconduct. Equally I suspect the school will try to ignore the complaint from a Trans student who presents as female. As with any law, the Trans rights experience under Title IX depends on the Trans students’ grit, their financial resources, and the sophistication of the school.
Trans students face an uphill battle. Title IX, the statute itself, mentions absolutely nothing about the Trans experience. The crucial point for any Trans student (respondent or complainant, presenting as male or female) is to fight as hard as possible to make it clear that the term “sex” as used in the statute refers to your current experience and not to what the doctor determined when you came out of your mother’s womb. If the power-player enforcing Title IX (be it Title IX staff or a court) against trans students (in their current identity) insists on treating them as who they were at birth, which is not out of the question as not all schools and certainly not all courts consider gender identity, then the Title IX protections and categories would shift, in a dehumanizing manner for the trans student no matter in which role of the student misconduct process. (3).
Part of this uphill battle, however, is already won! Because there’s no Supreme Court case on Title IX and transgender students (believe me if there was one I would know) the entry level Court hearing a case on trans gender students’ rights under Title IX would have to follow the procedure and look at Title VII—the employment discrimination statutes which also prohibit sex-based discrimination. And that’s where the victory lies: The Third, Sixth, Ninth, and Eleventh Circuits of the Federal Courts of Appeal, so that’s the layer right below the Supreme Court and in this case the layer that sets the law for a lot of people in the US including Pennsylvania, have held that Title VII's prohibition on sex discrimination includes transgender employees. (4). In Pennsylvania the argument is a bit longer; the Trans employee needs to claim discrimination because of gender stereotyping, which is too what a trans student would do. (5). So the leap is to say that just as transgender employees benefit from Title VII so do transgender students benefit from Title IX. That’s a victory won!
The specific case to focus on for Pennsylvania Transgender students either responding or complaining of sexual misconduct under Title IX is the Boyertown case. (6). It makes clear that Title IX applies to Trans students in the K-12 setting of a public school district. While I fully agree with and like this result, no doubt, the fact that the opinion comes from a wise judge whom I consider a role model, made a difference. (7). In contrast, a glib administrator can easily say that Boyertown does not apply to colleges, even less so to private colleges. The ability to think beyond your identity matters, so trans students in a college setting who either respond to or complain of sexual misconduct could face a problem according to the level of sophistication of the Title IX staff they deal with. They could face that same problem with a Court that finds itself “clouded.” (8). That conundrum--where some believe you and others do not even validate you--probably describes well the quotidian experience for Trans and other students. In addition there’s a further problem as in fact the Title IX guidance the Department of Education publishes used to protect trans students, but that guidance is currently withdrawn in expectation of the new and robust rules that will come out any day now (9).
Finally, this post merely skims the surface of what obviously represents one of the clearest examples of when the law and the legal profession in general (plus Title IX staff) try to meet a new unknown: The Trans experience under Title IX in higher education. This makes for a prediction matrix:
• If the school acts under sex at birth the respondent or complainant’s claim may default to the ordinary Title IX status: that is the student who was male at birth will need to show male bias, while the student that is female at birth will have to show deliberate indifference. This is unfair as the school has ignored the reality of the student.
• If the school acts under identity the question has many options because identifying the particular bias that animated the Title IX staff, depends on the identity and sexual orientation of each party.
Each participant, whether complainant or respondent, would have to pay close attention to the process and to whether or not Transphobia infects it. My guess is that it would even if the school treats the students under their identity. For example: What’s the Title IX staff at University X going to deplore more—a trans lesbian complaining that a gay student stalked her, or a trans male responding to the complaint from a cisgender man? The point is that Transphobia exists, that people probably don’t even acknowledge it, and that there’s a tricky way to argue, under Title IX, that Transphobia is the same flaw as male-bias which violates students’ rights.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. Title IX is way too succinct. See, e.g., https://en.wikipedia.org/wiki/Title_IX
2. We represent men who have to seek protection under Title IX and other legal theories when their school tries to kick them out for facing a sexual misconduct complaint. We have discussed why men sue, more so than women, here: https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-to-why-is-it-that-men-sue-their-school-under-title-ix-more-often-than-women
3. Title IX staff act in a dehumanizing way towards male respondents of sexual misconduct so it’s not a stretch to think they would act the same way towards a trans student as the male-bias they harbor (meaning they immediately think of men as rapists) could well suggest they harbor trans-bias (meaning they immediately think the trans experience is a phase, or a mistake, or a pathology). One way to tell what’s going on involves looking at the technique the Title IX staff used. See, e.g., https://www.studentmisconduct.com/news/quora-answer-how-can-you-best-tell-if-a-title-ix-investigation-is-using-techniques-that-are-based-on-science-and-evidence-of-effectiveness
4. Here’s the case law if you’re doing research. Doe v. Boyertown Area Sch. Dist., 893 F.3d 179, 199 (3rd Cir. 2018), vacated by Doe v. Boyertown Area Sch. Dist., 897 F.3d 515 (3rd Cir. 2018) ("Title IX prohibits discrimination against transgender students in school facilities . . . . Therefore a court may not issue an injunction that would subject the transgender students to different conditions than their cisgender peers are subjected to." [Emphasis added—this is a K-12 case not a college case. Its in fact a case where some Pennsylvanian complained that kids should use the school’s restrooms according to their sex at birth and lost); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574-75 (6th Cir. 2018) (discrimination on the basis of transgender status is per se sex discrimination under Title VII); Glenn v. Brumby, 663 F.3d 1312, 1316-20 (11th Cir. 2011) (recognizing that a "person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes," and holding that terminating an employee because she is transgender violates the prohibition on sex-based discrimination under the Title VII); Kastl v. Maricopa Cty. Comty. Coll. Dist., 325 Fed. App'x. 492, 493 (9th Cir. 2009) ("After Hopkins ... it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer's expectations for men or women."); Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (discrimination against a transgender employee violates Title VII because such discrimination was "based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.").
5. I have great fondness for Judge Slomsky of the Eastern District of Pennsylvania so please read his careful analysis of how to bring a claim (as an employee) where you are discriminated against based on the perception that you do not conform:
“Since Bibby, the Third Circuit has attempted to draw a clear line between sexual orientation claims and gender stereotyping claims. In Prowel v. Wise Business Forms, Inc., a gay employee was continuously harassed and ultimately terminated from his employment at a factory. 579 F.3d 285, 287-89 (3d Cir. 2009). He sued, and on summary judgment, the record revealed that some of the harassment targeted behaviors perceived as effeminate, but some of the harassment targeted his homosexuality. Id. at 289. Despite the presence of the gender stereotyping, the district court ruled in favor of the employer, holding that the suit "was merely a claim for sexual orientation discrimination ... repackaged as a gender stereotyping claim in an attempt to avoid summary judgment." Id. On appeal, the Third Circuit vacated the district court's decision. Although the court recognized that "it is possible that the harassment [plaintiff] allege[d] was because of sexual orientation, not his effeminacy," the court ultimately concluded that "this does not vitiate the possibility that [plaintiff] was also harassed to conform to gender stereotypes." Id. Thus, the court held that even where a plaintiff alleged harassment based on sexual orientation, he could survive dismissal or summary judgment so long as he demonstrated that some of the harassment targeted non-conformity with gender stereotypes. Id. at 290-91.
The Third Circuit has cautioned that the line between a gender stereotyping claim and a sexual orientation claim is "difficult to draw," particularly when "some of the complained conduct arguably fits within both rubrics." Kay v. Independence Blue Cross, 142 Fed. App'x 48, 51 (3d Cir. 2005) (Rendell, J., concurring). However, in certain cases, the line between these two types of claims does not seem merely difficult to draw; it seems arbitrary.”
Doe v. Parx Casino, 381 F. Supp. 3d 425 (E.D. Pa. 2019), April 11, 2019, Slomsky, J., available at: https://casetext.com/case/doe-v-parx-casino
6. In Doe v. Boyertown Area School District, a group of cisgender students and their parents sought an injunction against their school district, alleging that their Title IX rights were violated by allowing transgender students to use gender-affirming restrooms and locker rooms. The Third Circuit agreed with the lower court that a preliminary injunction was improper, thus holding that the plaintiffs were unlikely to prevail on the merits of their Title IX claim. The Third Circuit said: "Title IX prohibits discrimination against transgender students in school facilities .... Therefore a court may not issue an injunction that would subject the transgender students to different conditions than their cisgender peers are subjected to.” There’s other case law on Trans gender students in Pennsylvania, mostly focused on K-12 public school issues. See, e.g., A.H. v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321, 323 25, 326 32 (M.D. Pa. 2017) (denying school district's motion to dismiss a transgender student's Title IX and Equal Protection Claims based on school district's bathroom policy "dictating that children must use the bathroom corresponding to the sex listed on the student's birth certificate").
7. See, e.g., https://en.wikipedia.org/wiki/Theodore_McKee
8. See, e.g., Evancho v. Pine Richland Sch. Dist., 237 F. Supp. 3d 267, 288, 295 (W.D. Pa. 2017) ("[T]his Court simply cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear such that they have a reasonable likelihood of success on the merits of that claim. Put plainly, the law surrounding the Regulation and its interpretation and application to Title IX claims relative to the use of common restrooms by transgender students, including the impact of the 2017 Guidance, is at this moment so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that statutory claim.").