Education Law

Law prof sees Title IX 'collision course' in federal directives on bathrooms and sexual violence

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The Justice Department is citing Title IX to support its directive that public schools must allow transgender students to use bathrooms and locker rooms that match their gender identity.

Some schools could respond by opening bathrooms to both genders. But that raises a new question, Harvard law professor Jeannie Suk says in an article for the New Yorker. Could the same law that bans sex discrimination in education also be used to support a claim by female students who say sharing bathrooms with males makes them feel unsafe?

Suk notes that the Education Department told schools in 2011 that sexual violence is a form of harassment that constitutes sex discrimination under Title IX of the Education Amendments of 1972.

The federal government “has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms,” Suk writes.

“If a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. …

“The federal government is putting schools in a position where they may be sued whichever route they choose.”

Suk says it’s reasonable to think that the appropriate bathrooms for transgender people are the ones that match their gender identities. But she argues the Education Department did not follow “lawful processes” in adopting the bathroom guidelines without public input, a contention that is made in a lawsuit filed on Wednesday by 11 states.

Hat tip to the Volokh Conspiracy.

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