Academic journal article Duke Journal of Gender Law & Policy

Transgender Bathroom Rights

Academic journal article Duke Journal of Gender Law & Policy

Transgender Bathroom Rights

Article excerpt

"No State shall... deny to any person within its jurisdiction the equal protection of the laws."  - Fourteenth Amendment to the United States Constitution, Section 1  "No person... shall, on the basis of sex,... be subjected to discrimination under any education program or activity receiving Federal financial assistance."  - Title IX of the Education Amendments of 1972  "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex...."  - Implementing regulation of Title IX of the Education Amendments of 1972 at 34 C.F.R. [section] 106.33 

After winning the right to same-sex marriage in all 50 states in June, 2015, the LGBT community is once again battling in court for its rights, this time for the right of transgender people to use bathrooms and locker rooms that match their gender identity. In its "Dear Colleague Letter on Transgender Students," the Federal Government has recently interpreted federal law as requiring that transgender students be permitted to use bathroom and locker rooms that correspond with their gender identity in schools receiving federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this interpretation.

This Article examines the current court battles over transgender bathroom and locker room rights and discusses possible outcomes of the most contentious legal issues in dispute. These issues include: the procedures used by the Federal Government in issuing its interpretation; the substantial legitimacy of the interpretation; and the Constitutional authority of the Federal Government to issue its interpretation. The Article concludes that courts should uphold the Federal Government's recent interpretation of federal civil rights law because the Federal Government's interpretation is a reasonable interpretation, lawfully issued, that mirrors the best medical and psychiatric practices for the protection and inclusion of a vulnerable group.

INTRODUCTION

Title IX forbids sex discrimination in schools that receive federal funding. (1) However, Title IX allows sex segregated "living quarters," (2) and the regulations enforcing Title IX allow sex segregated bathrooms, locker rooms, and changing facilities. (3) The Federal Government's recent interpretation of Title IX and its implementing regulations as it applies to transgender individuals is that people with a male gender identity must be allowed to use the male facilities, and that people with a female gender identity must be allowed to use the female facilities. (4) This interpretation is consistent with the most current medical and psychiatric recommendations for the treatment of transgender individuals, (5) and accommodates those transgender individuals who clearly and consistently identify with being either male or female. (6)

This Article examines the current court battles over transgender bathroom and locker room rights (7) and discusses possible outcomes of some of the most contentious legal issues in dispute in these cases. Part I of this Article discusses the current legal landscape regarding bathroom and locker room use by transgender individuals. Part II discusses the most contentious legal challenges to the Federal Government's recent interpretation of Title IX and its regulations, contained in its "Dear Colleague Letter on Transgender Students" (Dear Colleague Letter). The Article concludes that courts should uphold the Federal Government's recent interpretation of Title IX because the Federal Government's interpretation is a reasonable and lawful interpretation that followed all required procedures.

I. THE CURRENT LEGAL AND POLITICAL LANDSCAPE ON TRANSGENDER BATHROOM RIGHTS AND THE LEAD UP TO THE DEAR COLLEAGUE LETTER

Title IX of the Education Amendments of 1972 provides that "[n]o 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. …

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