Hannah Conroy

6 May 2016
Research Paper
Title IX and Transgender Students
Transgender students face countless obstacles in school. To transition genders is hard
enough on its own, and students are often also faced with discrimination and misinformation.
This discrimination can come from other students, teachers, and staff. Title IX is a bill that was
passed to prevent gender discrimination in higher education. At the time of the passage of Title
IX in 1972, women were being denied access to colleges simply for being women and Title IX
was passed to remedy this and ensure gender equality in education. This bill applies to all
educational institutions which receive federal funding, either directly or indirectly. The policy of
Title IX has historically applied to college admissions, sports teams, and more recently, sexual
assault on campus. Title IX may also provide protections for transgender students at school. Title
IX outlaws discrimination on the basis of sex, and this can be interpreted to apply to both
perceived and portrayed sex, such as that of transgender people. Title IX also may provide
protections from bullying and unfair treatment in school. These protections are not specifically
stated in the bill, however. The rights afforded to transgender students under Title IX are not
clear and are open to interpretation. Therefore, the protections in Title IX for transgender
students are somewhat lacking. How Title IX will be and can be applied to protect transgender
students remains to be seen.
Title IX addresses the issue of gender equality in higher education. The 1960s and 70s
evidenced considerable discrimination against women in college admissions and college
programs, formidable institutional barriers continued to suppress the number of women earning

college degrees (Rose 2015, 160). Women could be denied access to a college simply for being
women. There also existed gender quotas or caps on the number women who could be
admitted to a certain college or program, ensuring a vast majority of the open spots would go to
men. Limits existed on what programs women could enroll in, often delegating women to careers
that fit the traditional private sphere model of womens occupations. Schools could also
establish a separate womens college, which was affiliated with the school (e.g. Harvard) but
women would a degree from the womens college, not the affiliated university. If a woman did
gain admittance to a college, the barriers did not disappear; faculty discrimination was a problem
as well. Professors would treat women differently in the classroom or give them lower grades in
an effort to discourage them from continuing to attend college. There were also cultural barriers
preventing many women from obtaining higher education. The idea women should be at home
while men were breadwinners was pervasive at the time. Men needed the education to get a good
career and support their families, while women were better suited to staying home and taking
care of children. There were also fewer scholarships available to women than men, placing an
economic barrier on women. Title IX was passed and intended to gain for women the
educational access that the G.I. Bill paid for and secured for economically disadvantaged men
and that Title IV of the Civil Rights Act of 1964 guaranteed successfully to African American
men (Rose 2015, 174).
The battle to ensure the passage of Title IX was fought by a relatively small group of
people. The two main proponents of the bill were Representative Edith Green and Senator Birch
Baye. They had personal experience with the implications of gender discrimination in higher
education and wanted to make a change. Green introduced Title IX of the Education
Amendments into the House of Representatives with little fanfare. She attempted to downplay

the effect Title IX would have on educational institutions. Baye took a different approach and
introduced the bill on the floor of the Senate with much pomp. The bill passed both houses of
Congress, however different versions were passed by the House and the Senate. Eventually, the
two bills were reconciled and the Senate language was used, thereby subjecting all public
undergraduate institutions to the Title IX regulation (Rose 2015, 174). All public and private
institutions that receive federal funds must abide by the policies laid out in Title IX. By
prohibiting sex-based discrimination in college admissions, it revolutionized the gender
dynamics of American higher educational institutions and marked a dramatic shift in U.S. higher
education policy. Occupying a brief paragraph in an otherwise rambling omnibus bill, the pithy
statute established that 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 (Rose, 158) OR As a
result, this landmark higher education policy significantly increased womens access to college
and paved the way for dramatic increases in womens higher educational attainment (Rose
2015, 177).
Historically, Title IX has been used to protect women from discrimination based on
gender in educational programs which receive federal funding. The pertinent part of Title IX
reads 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 protects all women and men who
attend educational institutions from discrimination on the basis of sex. This can mean
discrimination in sports or sexual assault. Title IX was not specifically designed with transgender
students in mind, making the protections for this group under Title IX somewhat lacking. The

language of the policy creates protection on the surface, however delving deeper reveals
problems with the protections. It is unclear whether or not these protections actually exist, as
they have not been extensively tested in the courts. One problem is the definition of sex in
Title IX is hard to pin down, making it difficult to determine of this definition applies to
transgender students. In her article, Schults explains On its face, the plain meaning of Title IX
protection seems to include transsexuals. In order to prove discrimination on the basis of sex, a
person must show that he or she was a victim of discrimination because of his or her "maleness"
or "femaleness," that is, because he or she was being a "male" or "female." It logically follows
that such discrimination would include a MTF transsexual...While this reasoning works in
theory, it has not produced results in practice (343). The definition of sex in the policy does not
explicitly cover presented sex, making the protections somewhat murky. However, recently, the
U.S. Department of Education has formally announced that Title IXs sex discrimination
prohibition extends to claims based on gender identity or failure to conform to stereotypes of
masculinity or femininity. This seemingly extends the protections of Title IX to transgender
students, however it remains to be seen how this interpretation will be applied in practice. Title
IX is made to protect women, and men, from discrimination on the basis of sex in educational
programs which receive federal funding, directly or indirectly. The protection from gender
discrimination may extend to transgender students, however it is unclear at the moment.
The values which underpin Title IX are ones of equality of the sexes and equality of
opportunity. The policy was passed to obtain equality for women in higher education; the values
of education and equal education are pervasive in this policy. Furthermore, the idea that women
deserve an equal opportunity in sports is explicit in Title IX. The courts have also interpreted
Title IX to apply to transgender students. Several recent cases have reaffirmed the application of

Title IX to protect the rights of transgender students. Furthermore, the Department of Education
has released a statement announcing that Title IX officially applies to transgender students and
schools and the courts should apply, enforce, and interpret it as such. Equality of all kinds is
expressed in Title IX, equality of the sexes and equal protection from discrimination. Advocacy
groups for transgender students, such as the Gay, Lesbian and Straight Education Network
(GLSEN), National Center for Transgender Equality and Trans Student Educational Resources
(TSER) all support Title IX and the application of the policy to transgender students. The courts
have agreed with the Department of Education and historically rule in favor of transgender
students being able to use the bathroom of their choice. California, for example, has passed a law
allowing transgender students to use the bathroom of their gender identity, as well as play on the
sports teams of the identity. A court in Maine has also sided with a transgender student who was
barred from using the bathroom of their gender identity. Advocacy groups and the courts support
Title IX and the interpretation which applies it to transgender students, which came from the
largest political actor, the Department of Education.
Sadly, transgender students require a lot of protection from discrimination which is hard
to cover under a single policy. The current cases that have been before the courts do not
explicitly cover the other interests of transgender students in asserting their gender identity
beyond bullying (Weiss 2013, 334). Students not only require protection from bullying, but
also require protection which allow them wear clothing that corresponds to their expressed
gender and to use the bathroom of their choice. Courts often do side with transgender students,
however this precedent is not consistent or widespread enough to offer sufficient protection. For
example, transgender students often have to fight for the right to use the bathroom which
corresponds to their gender identity. However this right is not explicitly iterated in Title IX,

complicating the process for many students. The issues for transgender students do not end at
bullying and bathroom usage and the current state of Title IX law is not sufficiently robust to
make clear whether transgender students are entitled to protection for forms of address, dress
codes, facilities usage appropriate to their gender identity, and protection from invasive
questioning (Weiss 2013, 339). The definition of sex within Title IX also poses a problem for
appropriately applying the policy to transgender students. More specifically, the lack of a
definition presents obstacles. There is the problem of people simply not understanding the
nuances of sex and gender presentation. Schults (2005, 350) argues for the person who does not
have a sex, who is medically dependent on breaking with society's traditional gender roles, it is
discrimination "on the basis of sex" when that person is forced to choose an undesired gender
performance. However, having this interpretation enforced, or even understood by school
officials, presents a problem. This form of discrimination is not written out clearly in Title IX, it
is a nuanced and complicated form of discrimination, as well as an important one. Overall, the
policy is not sufficient to ensure all the rights transgender students need. Title IX is not
accomplishing the goal of ensuring protection and equality for students.
Title IX is not an adequate policy to protect transgender students in schools. The students
require numerous protections which are not mentioned in the bill. Transgender students in
general are not mentioned at all within Title IX, as its original purpose had to do with gender
equality and not transgender rights. In order to make this policy more effective, it most likely
needs to be abandoned. A policy dedicated to protecting the rights of transgender students is the
most effective way to ensure these students are protected and receive equal treatment. Relying on
Title IX to protect transgender students requires the courts and schools to rely upon an
interpretation of language within the bill. Nuanced definitions of sex and gender

discrimination are utilized to find protections for transgender students from bullying and
unequal treatment. However, as these protections are based on interpretation and are not strictly
outlined in the policy, the strength and scope leave something to be desired. Bathroom usage,
pronoun usage, the ability to wear certain clothes and avoid questioning are just a few of the
protections important for transgender students which are mentioned nowhere within Title IX. A
new policy, one which is specifically designed to protect transgender rights and which outlines
these protections would be much more effective than Title IX currently is. Transgender students
face unique challenges and forms of discrimination, some of which can be encompassed under
Title IX and some of which cannot be. For example, the ability to use the bathroom which
correspond to gender identity is hard to fit in gender discrimination, yet is very important for
transgender students. Furthermore, the legal precedents established by Title IX are not enough to
protect students from discrimination. Students can seek protection if they are discriminated
against for being gender nonconforming, such as being transgender. However, there are problems
with this reasoning and precedent. Burvis outlines these concerns in her article On the Basis of
Sex. She points out For instance, there may be some cases of harassment in which there is
evidence of transgender animus, but not evidence of animus towards the plaintiff's gender
nonconformity. In such cases the gender nonconformity approach would be of little use...Some
view the gender nonconformity theory as undermining or erasing a transgender plaintiffs gender
identity, as it would require a transgender woman, for example, to seek relief for discrimination
against her as a gender nonconforming man (Burvis 2013, 237). The policy of Title IX and the
legal precedents established by the policy are not adequate to protect transgender students. A
dedicated policy for the protection of transgender students rights in schools could cover the many
gaps in coverage by Title IX and ensure transgender students are afforded the rights the need and

deserve in educational settings. If a new, comprehensive policy is not attainable, an expansion of

Title IX could also make the protections of transgender students more effective. Adding language
to the policy which defines gender or sex as presented or self-identified could aid in the
application of rights to transgender people by making the definition of gender discrimination
more all-encompassing and concrete.
Title IX was passed in order to ensure gender equality in higher education. At the time of
its passage, in 1972, women were being barred from higher education by rampant gender
discrimination. Title IX was passed to remedy the discrimination and ensure equality in higher
education programs which receive federal funding. Over the years since its passage, the
applications of Title IX have expanded to include other forms of gender discrimination, such as
discrimination in sports, sexual harassment and assault, and unfair treatment of transgender
students. Protections for transgender students have been found within Title IX and this
interpretation has been supported by the courts and the Department of Education. However, Title
IX was not passed with transgender students in mind. Gender nonconforming students are
mentioned nowhere in the bill. This lack of explicit protections makes Title IX inadequate to
properly protect transgender students from all the forms of discrimination they may face. A new
policy created specifically to protect transgender students or an expansion of Title IX to include
new language which is aimed at ensuring equal protection for transgender students is necessary
to ensure transgender students are treated fairly and equally in schools.

Sources
Buzuvis, Erin E. 2013. On The Basis of Sex: Using Title IX to Protect Transgender Students
from Discrimination in Education. Wisconsin Journal of Law, Gender, and Society
28(3): 22043.
Margolin, Emma. 2014. Transgender Students Protected under Title IX, DOE Says.
msnbc.com. http://www.msnbc.com/msnbc/transgender-students-protected-under-title-ix
(May 6, 2016).
Rose, Deondra. 2015. Regulating Opportunity: Title IX And the Birth of Gender-Conscious
Higher Education Policy. The Journal of Policy History 27(1): 15783.
Schults, Emily Q. 2005. Sharply Drawn Lines: An Examination Of Title IX, Intersex, and
Transgender. Cardozo Journal of Law & Gender 12(337): 33751.
Trans Student Educational Resources. Trans Student Educational Resources.
http://www.transstudent.org/ (May 6, 2016).
Weiss, Jillian T. 2013. Protecting Transgender Students: Application Of Title IX to Gender
Identity and or Expression and the Constitutional Right to Gender Autonomy. Wisconsin
Journal of Law, Gender, and Society 28(3): 33146.