Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 59 of 70 PageID 10737
gender identity, he is a boy and should be permitted to use the boys’ restrooms.[1]
In 2017, the Department of Education withdrew earlier guidance which had instructed that the term “sex” under Title IX included gender identity and that schools must allow transgender students to use sex-segregated restrooms, locker rooms and shower facilities consistent with their gender identity. Doc. 152, Def. Ex. 84, 237. The School Board contends that the withdrawal of that guidance signifies that the Department of Education disagrees with an interpretation of “sex” that includes gender identity for purposes of Title IX. But the 2017 Guidance stated it was withdrawing the earlier guidance because it had not undergone any formal public process and had been issued without extensive legal analysis or explanation as to how it was consistent with Title IX. Doc. 152, Def. Ex. 237. Thus, the rescission of the old guidance without issuing new guidance does not provide any interpretation of Title IX from the Department of Education. See A.H., 290 F. Supp. 3d at 326–27 (rejecting contention that withdrawal of previous guidance meant that school could
- ↑ The School Board argues that a finding that its policy violates the Equal Protection Clause renders Title IX unconstitutional. But even if the Court agreed with the School Board that “sex” as used in Title IX meant “biological sex” (using the term as the School Board defines it), Title IX does not mandate separate facilities, so a contrary Equal Protection ruling would not affect its constitutionality. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 259 (2009) (“Title IX exempts from its restrictions several activities that may be challenged on constitutional grounds;” some of which “may form the basis of equal protection claims.”) (citations omitted); see also Boyertown, 893 F.3d at 195 (noting that “Title IX does not require [schools to] provide separate privacy facilities for the sexes”).
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