Gender identity under Title IX

Title IX of the United States Education Amendments of 1972 prohibits discrimination "on the basis of sex" in educational programs that receive financial assistance from the federal government. The Obama administration determined that this phrase is ambiguous and, in the absence of clarification from Congress, interpreted it to cover discrimination on the basis of both assigned sex and gender identity. The Trump administration said that access to facilities based on gender identity should be left to the states and local school districts to decide.

The validity of the executive's position is being tested in the federal courts.

Congress kept the core provision of Title IX very brief, only one sentence long. The interpretation and implementation of Title IX was left to the executive, whom Congress expressly "authorized and directed to effectuate the [statute] by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of [its] objectives . . . ."

President Nixon initially directed the Department of Health, Education and Welfare (HEW) to carry this out. In 1980, HEW was split into two separate agencies —the Department of Health and Human Services (HHS) and the Department of Education (DOE). Responsibility for Title IX enforcement in educational institutions was delegated to DOE's Office for Civil Rights (OCR).

The Obama administration's efforts to apply Title IX to gender-based discrimination go back to President Obama's first term in office. In an October 2010 "Dear Colleague" letter, OCR issued guidance on the intersection between discrimination on the basis of sex and harassment on the basis of transgender status. Specifically, OCR stated that, although Title IX does not prohibit discrimination based on sexual orientation, "[t]he fact that the harassment [of a hypothetical gender non-conforming student] includes anti‐LGBT comments or is partly based on the target's actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment." In a 2014 Q&A document, OCR wrote unequivocally that "Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."

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