Texas court challenges Title IX use for gender identity protections

A Texas federal court’s decision Sunday challenged the U.S. Department of Education’s interpretation that Title IX includes gender identity in its protections against discrimination based upon sex, raising concerns for transgender students.

“What the Texas court said is that the Obama Administration cannot enforce its own interpretation of Title IX to require schools to offer transgender students the right to access bathrooms that conform to their gender identity,” said Holning Lau, a UNC law professor.

Lau said the ruling will have a minimal impact on pending House Bill 2 litigation because Texas resides in the 5th Circuit whereas North Carolina resides in the 4th Circuit.

Nathan Smith, director of public policy at the Gay, Lesbian & Straight Education Network, said he expects the federal government to appeal the Texas court’s decision to the 5th U.S. Circuit Court of Appeals.

“And if the 5th Circuit Court sides with the district court, then that would essentially signal off a circuit court split which could ultimately go up to the Supreme Court,” Smith said.

The Obama Administration has yet to publicly respond to the Texas court decision.

Last April, the 4th Circuit ruled in favor of Gavin Grimm, a transgender student wishing to use the bathroom that matched his gender identity.

Lau said the 4th Circuit Gavin Grimm case is much more salient to HB2 discussions because it took place in North Carolina’s circuit and is about transgender students’ bathroom rights.

“A district court in Texas does not have any binding authority for a court in North Carolina,” Lau said.

Lau said when two or more circuit courts disagree on how to interpret a law, it is more likely the Supreme Court will hear the case.

“We saw that, for example, in same-sex marriage where there was a circuit split and the Supreme Court decided to step in to issue a final decision on the issue of same-sex marriage.”

Smith said he wants to see these policies in schools to help with the mental and academic health of transgender students.

“Allowing students to use bathrooms and locker rooms that correspond to their gender identities, referring to students by the names that they go by as opposed to a different name or using the correct gender pronouns,” he said. “Those are all things that really go far to affirm a student’s identity but also improving their self esteem, improving their sense of self.”

Concern for transgender students’ mental health has grown in the state, with over 150 mental health professionals signing an open letter on Wednesday to Gov. Pat McCrory asking for him to repeal HB2.

Smith said he hopes students who feel discriminated against are aware of the legal resources available to them.

“It’s important to underscore though that schools and districts can still pass trans inclusive policies,” he said. “(The Texas court decision) does not put any sort of ban.”

@kentomcdonald

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