Title IX Gender Identity Mandate Withdrawn

UPDATE (March 6th, 2017): Today, the U.S. Supreme Court “vacated and remanded” the case that was expected to decide whether the meaning of “sex” in major areas of federal law actuallymeans “gender identity,” and not biological sex. The decision wipes out last year’s ruling by the 4th Circuit Court of Appeals alleging that “sex” could reasonably be understood to mean “gender identity” and thus that, under Title IX, students may access intimate facilities of the opposite sex.

The Court had been scheduled to hear oral arguments later this month in Gloucester County School Board v. G.G., in which a biological female student who identifies as male is invoking Title IX as protecting a “right” to access intimate facilities of the opposite sex in school. But after the Trump Administration reversed the Obama Administration’s Title IX Gender Identity Mandate last month, the Supreme Court asked both parties to submit recommendations to the Court advising how to proceed.

Even though both parties recommended that the Court decide the ultimate issue now (i.e., whether “sex” in Title IX really means “gender identity”), the Supreme Court apparently felt otherwise. Its one-sentence order vacating the lower-court decision reflects the fact that the 4th Circuit relied heavily on the Obama Administration’s interpretation of “sex” to mean “gender identity.” Now that the Executive Branch is no longer taking such a clear-cut stance, the Court is asking the 4th Circuit to go back to the drawing board, as it were, and determine where to go from here.

To read Judge Niemeyer’s powerful and compelling dissent in last year’s split-panel 4th Circuit decision, click here.

In his Apostolic Exhortation Amoris Laetitia, Pope Francis made a plea that we not give in to a “gender ideology” that “denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family.” (See §56).

“Let us not fall into the sin of trying to replace the Creator,” Pope Francis stated. “We are creatures, and not omnipotent. Creation is prior to us and must be received as a gift.”

The U.S. Departments of Education and Justice have issued a “Joint Letter” officially rescinding the Title IX Gender Identity mandate issued in May 2016 by the Obama Administration. The mandate had purported to  require all schools across the country to interpret “sex” in Title IX to mean “gender identity,” and thus to allow use of intimate facilities according to one’s internal identity regardless of one’s biological sex.

The newly issued Joint Letter stressed that the previous mandate was based on minimal legal analysis and failed to explain how its position was “consistent with the express language of Title IX[.]” It also critiqued the mandate for failing to undergo the required public process.

As a result, the U.S. Solicitor General’s Office immediately sent a letter to the U.S. Supreme Court notifying the nine Justices of the Trump Administration's actions. The U.S. Supreme Court is currently scheduled to hear oral arguments in Gloucester County School Board v. G.G. on March 28th. The case hinges on the Obama Administration’s interpretation of the word “sex” in Title IX to mean “gender identity,” which had required a Virginia school district to allow “G.G.”, a biological female student, access to the boys’ locker room and restrooms based on her internal identity as male.

The immediate impact should be minimal. Last summer, a Texas federal court had issued a national injunction forbidding the federal government from enforcing the mandate, in violation of the plain terms of Title IX and the procedural requirements for creating a new federal regulation. However, the Supreme Court’s decision in Gloucester was expected to settle much of the dispute.

The letter leaves in place the myriad of current protections forbidding discrimination against any student on a number of grounds, along with federal protections against bullying and hate crimes.

For now, we will await the Supreme Court’s response to the new Joint Letter. Check back soon for updates.