Thursday, November 1, 2018
Trump Administration Proposes to Define the Term “Sex” Under Federal Law
A memo obtained by the New York Times outlines the Trump Administration’s proposal to define the term “sex” under Title IX. The Trump Administration is considering a proposal to that would narrowly define “sex” under Title IX as “either male or female, unchangeable and determined by the genitals that a person is born with.”
Title IX is a federal civil rights law that prohibits discrimination in any education program or activity on the basis of one’s sex. Covered institutions – such as schools – are prohibited, among other things, from subjecting “any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex.” The law currently, though, does not define the term “sex.” Numerous federal courts have interpreted Title IX’s prohibition against sex discrimination to include discrimination on the basis of gender identity, thereby protecting transgender students from discrimination within educational settings. For example, transgender students within these courts have successfully used Title IX to fight school district policies that prohibit them from using bathrooms and/or locker rooms that align with their gender identities.
If the Trump Administration adopts this narrow definition of “sex,” the use of this definition could extend to other federal civil rights laws as well; thus eliminating protections under federal law for transgender persons. Additionally, this narrow definition, if adopted, would likely create some confusion, and possibly some harm, around the process of changing gender markers on identity documents (especially with federal documents).
The Trump Administration has yet to formally propose its definition of “sex,” although it is expected to later this year. Once it does, there will be a public comment period, generally around 60 days. After the public comment period ends, the proposed definition would be presented to the United States Department of Justice (DOJ) for its consideration. If the DOJ determines that the definition is legal, the definition would be approved and enforced within Title IX and possibility other federal laws.
Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, The New York Times, Oct. 21, 2018, available at: https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html.
34 C.F.R. § 106.31(b)(4).
See, e.g., Whitaker v. Kenosha Unified School District, 841 F.3d 730 (7th Cir. 2017)