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New Definition of “Sex” Eliminates Protection for Transgender Individuals

Transgender Sexual Orientation and Gender Identity Discrimination Protection

The Trump Administration is challenging the rights of transgender individuals with its proposal to eliminate federal protection under Title IX.  According to a memo obtained by the New York Times, the Department of Health and Human Services is in the process of implementing a uniform definition of sex that would not protect transgender students.

Title IX is a federal law prohibiting sex discrimination in educational institutions that receive federal funding.  In 2016, the Obama Administration issued guidance with a “Dear Colleague” letter that stated transgender students will be protected under Title IX, based upon its prohibition of sex discrimination.  However, in early 2017 in a subsequent “Dear Colleague” letter, the Trump Administration withdrew these guidelines and concluded that sex discrimination does not afford protection to transgender students.

Since then, the Department has debated how the enforcing agencies of Title IX (the Departments of Education, Justice, Labor, and Health and Human Services) should define sex discrimination.  In its recent memo, the Department of Health and Human Services stated that: “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.”  In other words, this definition does not permit claims of transgender discrimination (ie., claims from students who feel discriminated against based on their transgender status).

This definition would affect the rights of an estimated 1.4 million Americans who identify as transgender.  It also contradicts federal court decisions that have recognized additional rights for transgender students.

School administrators and employers alike should pay close attention to the changes that lie ahead.  The debates and decisions made in the coming months will likely have a significant impact on day-to-day operations.

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