Law in Contemporary Society
We Need to Know What Sex Is

The mission of the Department of Education (“the Department”), as stated on their website, is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. ( As our understanding of sex and gender identity has evolved in recent years, there has been more debate about whether the Department is observing its mission when interpreting how regulations about sex and sex discrimination apply to transgender students. After some back and forth, we are left now with an understanding of sex that recognizes the reality of transgender students in some regards, but not in others, particularly in the case of bathroom access. In order to provide clarity for school, students and parents and meet its mission of ensuring equal access, the Department should issue a definitive and comprehensive definition of sex.

The question of whether the Department is in fact adhering to its mission was addressed when it issued a Dear Colleague letter in 2016 stating that Title IX prohibits discrimination on the basis of gender identity and clarified that transgender students should therefore be treated consistent with their gender identity at school. ( The country, though still divided on the issue, briefly had indisputable evidence of what the Department’s stance was. However, this certainty was taken away when the Department retracted the letter in 2017. In 2018, a spokesperson for the Department further added to the confusion by saying that although penalization of harassment of students for not conforming to sex-stereotypes is sex discrimination prohibited by Title IX, bathroom separation on the basis of sex is not a form of discrimination protected by Title IX. (

Underlying this argument is the presumption that bathroom access consistent with gender identity is required to ensure equal access. Arguments that bathroom access is not tied to equal educational opportunity primarily focus on the non-educational nature of bathroom usage or the equality that regulations regarding sex and bathroom use are applied equally to all students. Both arguments are unpersuasive and fail to understand the significance of the issue. As to the former, it is true that bathroom usage does not have the same educational connotations as other parts of the schooling process. That said, bathrooms have become a necessary part of human existence. Not being able to use the bathroom at school forces students to wait until they get home or go out of their way to find a unisex bathroom (if there is one). Both options detract from learning giving students a subpar educational experience. In response, critics argue that transgender students are able to use the bathroom - they just have to use the bathroom that corresponds with their sex, not their gender identity, just like every other student. In this way, they argue, there is equal access. However, equality is not simply about facially neutral regulations that apply in the same way to every individual. Further, there is a lack of equal access because cisgender students are being allowed to use bathrooms that they would choose anyway, whereas transgender students are not. Given our contemporary understanding of gender identity, this difference clearly points to inequality.

The Department has a responsibility to clarify the definition of sex for schools such that transgender students can use the bathroom that aligns with their gender identity. Issuing a new rule defining sex in this way allows students and parents to know that no matter where they are bathroom access will not be a concern. Such a rule would also recognize fully the reality that many people wrestle with gender identity and how it relates to their sex assigned at birth. This recognition would empower developing students who are transgender or might be questioning their gender identity to feel more comfortable doing self-exploration. Finally, such a rule would ensure equal access for all students to bathrooms with which they are comfortable. Equal access is a core value of the Department that it is currently failing to meet by not providing protection for transgender students. ( and This lack of protection has very real and long-lasting implications for the educational and life quality of transgender individuals.

There are many individuals who believe either that the actions taken already speak clearly enough for the Department’s position or that allowing transgender students to use the restrooms of their choice would be going too far. These individuals cite concerns regarding tradition, privacy, deference to local school districts, and flip-flopping. Arguing that tradition is a reason to maintain the current status quo argues for maintaining a discriminatory system. That line of argument is reminiscent of arguments against equality in other areas that have thankfully failed before. Privacy concerns are a genuine concern, however critics of equal bathroom access based on gender identity often focus on privacy concerns of cisgender students. This argument misses the point and deftly turns attention away from transgender students who are seeking equality. Further, it suggests that the privacy concerns of transgender students is less important than those of other students. Although transgender students are a smaller portion of the student population, they deserve to be protected by law for that very reason. The argument about school districts is compelling at first. However, when it comes to issues of equality and discrimination, a national standard is necessary. Local discrimination uproots lives and forces the discriminated to make a choice between, in this case, where they go to school (which sometimes implicates where they live) and whether or not they can use the bathroom. Finally, fears that students will change how they identify their genders regularly misunderstand the transgender experience and instead focus on the possibility that ill-intentioned students will abuse the policy for improper reasons.

As the Department is responsible for ensuring equal access to all students, including transgender students, it should issue a new rule defining their regulations as prohibiting bathroom access on the basis of sex, which is inclusive of gender identity. These protections will allow this country to move past the bathroom debates, which have likely been a scapegoat for other very real concerns.

-- By AndyGutierrez - 01 Mar 2018

I don't understand this draft. It responds to my comments on the preceding draft, in that it gives up on the issue of standard of review, but it gives no reason for believing either: (1) that the Department of Education hasn't defined "sex" adequately; or (2) that it has any "duty" to clarify anything.

As to (1) you write that "In 2018, a spokesperson for the Department further added to the confusion by saying that although penalization of harassment of students for not conforming to sex-stereotypes is sex discrimination prohibited by Title IX, bathroom separation on the basis of sex is not a form of discrimination protected by Title IX." So there is no dispute about what "sex" means, only a dispute about what "discrimination" means. As to (2), you have given no reason why the Department had a duty to issue the original "Dear Colleague" letter, had a duty either to retract or not retract it, or now has a duty to issue new guidance clarifying its position. If there is such a legal duty, is it created by Title IX, or by some other statute?

I cannot tell whether you have changed position about what the bathroom rules in public schools should be. This draft appears to support the position taken in the original letter of guidance. The previous draft appeared to say that the courts should not have deferred to the agency's understanding of its own regulations if that understanding was a "surprise" to non-school, non-colleague parties. I'm glad we decided to refocus the essay on the question, given the indirectness of the previous draft, but I'm puzzled by the apparent conflict between the process draft and the substance draft on the substance.


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r5 - 23 Jun 2018 - 13:15:59 - EbenMoglen
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