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Title IX Does Not Apply to Gender Identity, States Say in Transgender Student Suit

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A Virginia school district should not be required to allow a student who was born a girl but now identifies as a boy to use the boy's restroom, South Carolina Attorney General Alan Wilson wrote in a legal brief he filed on behalf of leaders from six states this week.

The U.S. Department of Education previously filed an amicus brief in the case, which is before the U.S. Court of Appeals for the Fourth Circuit, arguing that the civil rights protections in Title IX extend to sexual orientation and gender identity. Therefore, the Gloucester County, Va., district is required to allow the 16-year-old student, known in the case as G.G., to use the restroom that matches his gender identity, regardless of his biological sex.

But the states of South Carolina, West Virginia, Arizona, and Mississippi and the governors of Maine and North Carolina disagree with that interpretation, Wilson wrote in an amicus brief. And the school district has offered an adequate accommodation by giving the student access to a single-stall restroom, the brief says.

"G.G. was born a baby girl. G.G. has two X chromosomes, not an X and a Y chromosome," the brief says. "It is also undisputed that G.G. has the female sexual and reproductive organs, and lacks the male sexual and reproductive organs. In short, there is no disagreement that G.G. is biologically of the female sex. That simple truth suffices to resolve this case."

As I wrote recently, drafting policies related to transgender students has been challenging for some school districts that struggle with differing interpretations of federal civil rights laws. Most recently, officials with the U.S. Department of Education's office for civil rights said the Township High School District 211 violated a transgender girl's civil rights by not allowing her unrestricted use of her high school's girls' locker rooms.

But the department is wrong to interpret Title IX so broadly, the states said in their brief this week.

"The 1975 regulation expressly authorizes 'provid[ing] separate toilet, locker room, and shower facilities on the basis of sex,' " the brief says.

"In 1972, 1975, and today, sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity. Moreover, because Congress enacted Title IX under its Spending Clause authority, courts must apply a clear statement requirement; but there is certainly no clear statement that the law extends beyond discrimination based on biological sex. To hold otherwise disregards fundamental principles of federalism."


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