Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants must reference judicial decisions interpreting the sex-discrimination prohibition in Title IX's employment discrimination analog, Title VII of the Civil Rights Act of 1964.
This Article examines judicial regulatory decision interpreting sex discrimination for purposes of Title VII, and describes the handful of cases to date in which courts have considered Title IX’s applicability to cases involving transgender plaintiffs. The Article then envisions how Title IX applies to transgender discrimination contexts that the courts haven’t considered yet. The Author demonstrates that a number of interpretations support Title IX as a source of legal rights for transgender plaintiffs in contexts like harassment, admissions, and expulsion, while plaintiffs challenging discrimination in those aspects of education that are lawfully segregated by sex can benefit from recent and emerging interpretations of sex discrimination borrowed from the Title VII context.
Erin Buzuvis, “On the Basis of Sex”: Using Title IX to Protect Transgender Students from Discrimination in Education, 28 WIS. J.L. GENDER & SOC’Y 219 (2013).