What Does Title IX Say About Gender? Transgender Rights Weren't Explicitly A Part Of It
When it was first passed in 1972, Title IX aimed to create a more equal educational environment. In many ways, it has succeeded at that — but now, the Trump administration is reportedly trying to use it against transgender people. In order to understand how that could happen, first you have to know what Title IX says about gender.
Most famously, as Ohio University laid out, Title IX paved the way for more women participating in school sports at all levels. According to the actual text of the legislation, though, it's a bit more broad than that. The wording of the original 1972 Title IX legislation, as listed on the Department of Education website, is as follows:
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.
This, as the ACLU wrote, has done a lot to increase gender equity in schools — but in its original form, it didn't include anything about gender discrimination regarding transgender students. This inclusion didn't come until the Obama administration — and even then, it wasn't a change in the wording of the actual legislation.
The change came in the form of a set of guidelines from the Department of Education, which, as FindLaw explained, made it clear that Title IX's prohibition of sex discrimination also covered discrimination based on gender identity. Someone who is transgender, of course, has a gender identity that does not match their sex assigned at birth, so those guidelines added a layer of protection for them.
The Trump administration rescinded those Obama-era guidelines in early 2017, though, as FindLaw wrote, essentially nullifying the protection for transgender people that the Obama Department of Education created and bringing Title IX back to an undefined state regarding transgender protection. Whereas the Obama administration expanded the application of Title IX to make it explicitly apply to transgender students, the Trump administration, so far, has only walked that back.
The new proposed wording for Title IX according to The New York Times, however, would again clarify the legislation — but it would take it in the opposite direction than the Obama administration did. Rather than expanding the protections that Title IX offers, the reported new language would officially define "sex" in a very narrow way that entirely ignores the existence of transgender people. As The Times reported, the new definition would not leave any room for a gender identity that doesn't correspond with the assigned sex at birth, based on the genitalia that the person in question was born with.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” read the department's proposed wording, according to The Times. The department memo also reportedly stated that the definition of gender should have "a biological basis that is clear, grounded in science, objective and administrable,” and it explained that a person would not be able to claim that their gender identity was different from their assigned sex at birth without "reliable genetic evidence" proving it.
If the Trump administration's Department of Education chooses to use this reported language, it will do more than take away the protections for transgender students that it already removed. Title IX, as it stands right now without those Obama-era guidelines, does not explicitly address transgender students — but the reported proposed wording would question their legal existence entirely.