Can Title 9 in the Civil Rights Act of 1964 be tweaked to mean anyone can use any bathroom in a school?

November 2 – An argument has come up claiming that Title 9 of US Civil Rights law prohibits schools from denying a student the right to use the bathroom and or locker room that fits his or her stated gender identity.

If that is the case, since it’s the school’s legal obligation to not discriminate, what would school administrator say to parents who take issue with this?

Attorney Clint Barkdoll, Pat Ryan and Michele Jansen discussed the tweaking of Title 9 Monday morning during the Big Talk on First News.

Jansen said, “I take issue with the question because they act like Title 9, and this is the Civil Rights that’s actually supposed to protect women and girls from being discriminated against and it’s being used by activists in the LGBTQ+ community but they’re saying oh that’s been decided and it’s illegal for us to keep anyone who identifies as the opposite sex out of bathrooms and locker rooms. Is that definitively decided?”

Barkdoll said, “This is not as clear cut I think as some people want it to be. Title 9 is a fairly new law. It’s a Nixon-era law. It specifically prohibited sex-based discrimination in any school or educational program. For years you saw this manifested in college sports programs. The law is still not clear on this.”

There is this Boyertown School District case in PA where the federal circuit court said that Boyertown did have to accommodate a student’s bathroom preference based on their gender identity. The US Supreme Court declined to further hear the case which basically upheld the Boyertown decision.

Barkdoll pointed out, “That decision did not mandate every school district to adopt the policy. It’s still very much on a piecemeal basis, so school districts are by no means obligated to adopt a formal policy that says that, but to the extent places like Boyertown were confronted with it, they did have to make the accommodation. Circuits around the US have been somewhat split on this, so I would say right now it’s still not clear cut law on what it really should be or what it is.”

Jansen said, “I’ve done some research on this, of course what’s happening is they’re conflating that decision about Title 7, saying for the employment that the Supreme Court made a decision, which I think is an odd decision that they said that back in the 1960s, they were talking about gender identity when they referred to sex. I don’t agree with that, but it certainly was not applying to schools or Title 9, but they’re conflating that decision to allow this within employment to accommodation to all kinds of other things including the Title 9. I think it’s every parent’s right to still dispute this, every citizen’s right because this is not settled law and I don’t think people are thinking along the lines of well, wait does this just mean anybody who decides on any given day? Or are we talking about I think what the court was looking at, true gender dysphoric people who have a long-term idea that they are the opposite sex, which I think is what they were originally looking at in all these individual cases. So this is a very fluid judicial legal thing that people do not have a final answer on and school boards and admins shouldn’t be acting as though there is a final answer.”

Barkdoll said, “Title 7 of the Civil Rights Act of 1964 is in the context of labor. You cannot make decisions on hiring or firing or promotions or demotions on the basis of gender, sex, religion, national origin, skin color is even one of the protected classes. That is different from this Title 9 question because yes, the Supreme Court a couple years ago, they did expand the definition of sex under Title 7 to include gender and gender identity, but that does not necessarily extend to Title 9 when it comes to these public school or higher education accommodations that were designed specifically for females in the 1970s.”