Bench Memos

Law & the Courts

Ninth Circuit’s Title IX Transgender Ruling Ought to Cut Both Ways

In an opinion rendered today (in Parents for Privacy v. Barr), a Ninth Circuit panel rejected various constitutional and statutory claims that an Oregon public school district violated the rights of students when it allowed other students who identified as transgender to use the bathrooms, locker rooms, and showers that matched their gender identity rather than their biological sex.

I’d like to focus here on the panel’s holding that the school district’s policy didn’t violate Title IX. (Slip op. at 27-33.)

Title IX provides that no person shall be subjected to discrimination “on the basis of sex” in any education program that receives federal funding. The parents and students challenging the school district’s policy contended that it created a sexually harassing environment. But the Ninth Circuit held that “a policy that treats all students equally does not discriminate based on sex in violation of Title IX.” (Slip op. at 9.) In response to the plaintiffs’ charge that (in the panel’s paraphrase) the policy “actually harasses both sexes on the basis of their sex by allowing students assigned the opposite sex at birth to enter privacy facilities,” the panel states:

To the contrary, treating both male and female students the same suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes. Numerous courts have ruled that a Title IX sexual harassment hostile environment claim fails where the alleged harassment is inflicted without regard to gender or sex, i.e., where there is no discrimination. [Citations omitted.] We see no reason to arrive at a different conclusion here.

The question in this case was whether a school district may allow transgender students to use the facilities of the opposite sex. In other cases, in challenges brought by transgender students, the question is whether school districts must allow such use. It seems to me that the principles that the panel propounds dictate a “no” answer to that question: A “policy that treats all students equally”—by requiring that they use the facilities that match their biological sex—“does not discriminate based on sex in violation of Title IX.” Such a policy “treat[s] both male and female students the same” and thus “suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes.”

I’ll add that I am struck by the panel’s casual embrace of transgender semantics, a semantics that is freighted with ideological weight. To cite just a few examples: The panel speaks of “a transgender person who was assigned the opposite biological sex at birth.” (As noted above, it even uses that bizarre phrasing when it paraphrases plaintiffs’ argument.) It uses male pronouns for a student “who had been born and who remained biologically female”—and who, for all we know, was still a female under Oregon law.* And it uses the word cisgender on multiple occasions—“cisgender boys,” cisgender girls,” “cisgender students.”

The panel’s degraded English is also reflected in its reciting, without comment or correction, the school district’s policy of allowing a female student who identifies as male to “use any of the bathrooms in the building to which he identifies sexually.” Identifying sexually to a bathroom?!? What sort of weird language is that?

* In his recent opinion objecting to the denial of rehearing en banc in Edmo v. Corizon, Inc., conservative Ninth Circuit judge Diarmuid O’Scannlain explained that he was using female pronouns for a prisoner who “was born a male” because the prisoner had “legally changed the sex listed on her birth certificate to female.”

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