For two years, the U.S. Supreme Court has been able to avoid the inevitable, but the justices will be asked, most likely this year, to define the meaning of “sex” in Title IX.
Transgender schoolchildren and their attorneys argue gender identity is a protected class under the federal education nondiscrimination law, and judges mostly have agreed. A confluence of cases are headed to appeals courts across the country, pitting transgender students’ demands for access to the restrooms and locker rooms of their choice against schools’ attempts to maintain privacy for all students.
The high court agreed in 2016 to hear a Virginia case but returned it to the 4th U.S. Circuit Court of Appeals after President Donald Trump rescinded an Obama administration guidance letter claiming Title IX includes protections for gender identity.
Until last week, the most likely candidate for Supreme Court review this year came from Wisconsin. Kenosha Unified School District No. 1 had appealed a 7th Circuit decision applying gender identity to Title IX. But in the face of mounting legal bills at taxpayer expense, the district settled the lawsuit Jan. 9.
In dropping its Supreme Court appeal, the Kenosha board of trustees left in place the appeals court interpretation of sex, which now applies to all public schools in the 7th Circuit’s jurisdiction: Wisconsin, Indiana, and Illinois.
“The school district tried to protect privacy for all students, but ultimately yielded to the demands of gender activists. Once that happens, private facilities are opened to the opposite sex,” Gary McCaleb, an Alliance Defending Freedom attorney, told me. ADF is representing parents and schools in several other similar cases.
In Palatine, Ill., parents lost their appeal last month for an injunction against Township High School District 211 over a policy that allows students to use sex-segregated facilities based on their gender identity, not biological sex. In his Dec. 29 decision, U.S. District Judge Jorge Alonso cited the Kenosha case and an unrelated Title VII lawsuit—also out of the 7th Circuit—in upholding the district’s policy.
Alonso dismissed privacy concerns, saying “protections against sex discrimination are substantially broader than based only on genitalia or chromosomes.”
Palatine parents plan to appeal to the 7th Circuit because, although the lawsuit was directed at one campus, the policy covers the entire district—a fact Alonso also dismissed, McCaleb said.
A second transgender student filed a lawsuit against the school district in December. Students and Parents for Privacy, a group representing 51 families, filed a motion Jan. 12 to intervene.
McCaleb said courtroom arguments are complicated by attorneys who redefine or refuse to use terms that distinguish between the sexes. During proceedings in Ohio involving a fifth-grade boy who identifies as a girl, the judge asked the child’s attorney whether the student had male genitalia. The lawyer responded that it was “inappropriate to label any part [of the student’s] body as male,” McCaleb said.
That tactic forms a major part of the strategy transgender activists use to skirt the Title IX exemption that allows schools to create sex-segregated private facilities: Self-perception, not biology, determines a student’s sex.
“Language is supposed to be common among us. It shouldn’t be privatized and turned into an advocacy thing,” McCaleb said. “Then it becomes a weapon instead of a communication channel by which we learn to live together and settle our differences.”