Potential Hurdle Facing Transgender Students

Potential Hurdle Facing Transgender Students

By: Adria Lynn Silva on December 17, 2020

 

Earlier this year, Representative Tulsi Gabbard of Oklahoma introduced H.R.5603- Protection of Women and Girls in Sports Act of 2020 – which, if enacted, would prohibit transgender student athletes from competing on the team of their identified gender. The proposed legislation seeks to define sex as the sex assigned at birth by a physician.

The proposed Amendment is contrary to the plain text of Title IX which states that;

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.

20 U.S.C. Section 1681(a). Discrimination on the basis of sex includes separation of transgender students from their cisgender counterparts. Grimm v. Gloucester Cty. Sch. Bd., 976 F.3d 399, 403 (4th Cir. 2020) accord Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954)(“This type of segregation creates harmful stigma, just as the racial segregation of restrooms and schools imposed a badge of inferiority on Black children”).

Nevertheless, to date, transgender students have protections under Title IX here in the Eleventh Circuit (Alabama, Florida, Georgia). See e.g., Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020); Regalado v. Georgia State Univ., No. 1:20-CV-720-LMM, 2020 WL 5815924, at *5 (N.D. Ga. Sept. 10, 2020)(Title IX protects transgender individuals); and Burks v. Bd. of Trustees of Fla. Agric. & Mech. Univ., No. 4:19CV275-MW/MAF, 2020 WL 7137108, at *3 (N.D. Fla. Dec. 4, 2020)(“Courts have held that Title IX’s prohibition against sex-based discrimination includes discrimination on the basis of sexual orientation and gender expression”).