In an effort to be more inclusive, Harvard University now asks incoming freshmen to check off their pronoun of choice during the initial course registration process: he, she, ze, e or they. Harvard is one of a growing number of colleges and universities nationwide that asks incoming students to choose their preferred pronoun. Requesting this information is just one way in which schools are addressing issues of transgender rights. Institutions of higher education as well as secondary schools are grappling with gender identity in light of their legal obligations under Title IX, specifically with regard to the rights of transgender and gender-fluid students to utilize single-sex facilities (such as a locker room or restroom).

A divergence between recent letter rulings from the Department of Education Office for Civil Rights (OCR) finding that transgender status is protected, and court opinions holding that it is not, has left schools struggling to understand their legal obligations and adopt compliant policies. Two recent court cases, including one on appeal in the U.S. Court of Appeals for the Third Circuit, specifically address the question of whether schools can require transgender students to use the locker rooms and restrooms of their birth gender.

Title IX and Gender Identity

The term transgender refers to a person whose inner sense of being male, female or something else differs from that person's assigned or presumed sex at birth. Title IX of the Education Amendments Act of 1972, 20 U.S.C. Section 1681, prohibits discrimination “on the basis of sex” by any education program or activity that receives federal financial assistance. In order to enforce compliance under Title IX, the federal government has the ability to withdraw federal funding from noncompliant institutions, including the withdrawal of student aid programs, as in Section 1682.

Whether the clause “on the basis of sex” in Title IX includes gender identity is still an open question under existing case law. In its guidance materials, the OCR states that “on the basis of sex” encompasses “discrimination based on gender identity, or failure to conform to stereotypical notions of masculinity or femininity.” While there has been no comprehensive guidance on the obligations of educational institutions to transgender students under Title IX, the OCR has further stated in its compliance materials that “under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation and evaluation of single-sex classes.”

Court Cases

In a case currently on appeal before the Third Circuit, Johnston v. the University of Pittsburgh, the district court held that a recipient institution under Title IX does not violate the constitution or federal and state statutes when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. Seamus Johnston, a transgender man, applied to the University of Pittsburgh at Johnstown in 2009, marking “female” on his application. In 2010, Johnston underwent counseling related to his gender identity and was diagnosed by his psychotherapist with gender identity disorder.