Members of the Trump administration are wrong in their reasoning to rescind anti-discrimination protections for transgender students. They argue that Title IX was always about sex, never about gender. They state that transgender rights are matters for states to decide, not the federal government.
The first rationale is not supported by fact; the second contradicts practices long associated with Title IX. We cannot allow the Trump administration to hijack our shared history of anti-discrimination law to forward a discriminatory agenda.
At the time Title IX was written, “sex” referred to biology. But it also referred to the social roles of women and men. Indeed, one could argue that Title IX and other anti-discrimination laws were always about gender, not sex.
Witness, for instance, the American Civil Liberties Union’s Women’s Rights Project, which led the feminist charge for legal reform by developing a litigation docket that addressed women’s inequality in a range of areas including Social Security and unemployment benefits, inheritance law, and employment practices.
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In these endeavors, feminist reformers addressed the effect women’s and men’s roles have on the distribution of rights and entitlements. The courts acknowledged that the legal limitations that had been placed on women were not justified because there was nothing natural or inherent in the roles women and men played. Society constructed these inequalities, and the law could help destroy them.
Thus, early anti-discrimination cases helped destabilize the misconception that biology dictates differences between women and men.
By attacking patriarchal ideologies embedded in the law and applying the law in new ways to attend to the lived realities of women, legal activists and lawmakers incorporated gender-equity principles into the legal system and helped correct public opinion that a woman’s inferior social status was an outgrowth of her genes.
Yet, when we look at these cases, they use the term “sex” not gender. So when the current leaders of our Departments of Justice and of Education say that Title IX has always been about sex, not gender, they are either ignorant or lying.
The argument that states should decide if they will protect transgender students from discrimination is also bogus. Since Title IX was enacted, the federal government has played a central role in elaborating what gender equality means for schools. In 1979, the federal government issued regulations that described how Title IX applied to sport.
These guidelines were refined in 1996, 2003, 2006 and 2010. A federal policy clarification in 1997 made clear that Title IX prohibits sexual harassment. In 2000, and again in 2011, the federal government refined guidelines for dealing with sexual harassment in schools.
These examples show that states have played a minimal, perhaps nonexistent, role in elaborating Title IX’s meaning.
The Departments of Justice and of Education ignore this history when they contend that the 2016 federal directive to apply Title IX to the protection of transgender students was improper because it was devised “without due regard for the primary role of the states and local school districts in establishing educational policy.”
We should remember that elected officials in the South used states’ rights arguments to resist the racial integration of schools. We rejected such arguments then. We should do so now.
As Eliza Byard, executive director of the Lesbian and Straight Education Network, succinctly states, “The fact is that no child in America should have their rights subject to their ZIP code.”
Kathryn Forbes is a professor in the Women’s Studies Program at Fresno State. Connect with her at firstname.lastname@example.org.