How Title IX Works to Protect
As part of her Title IX at 50: Educate & Advocate project, Distinguished Professor of Humanics Kathleen Mangano interviewed Title IX expert Erin Buzuvis – professor of law and associate dean of academic affairs at Western New England University – about the implications of rights law. A webcast of the full interview can be viewed at springfield.edu/TitleIXat50. An excerpt from their conversation follows.
How does Title IX specifically protect transgender and gender non-conforming students and the LBGTQ community?
It’s a perfectly reasonable question. The word “specifically” is what makes it difficult. There is certainly an evolution in the interpretation and understanding of this issue. On a general level, the Title IX prohibition against sex discrimination means that in anything that admits people of all genders and only transgender people are excluded, it will violate Title IX. Where there is debate is how trans students should be treated in single-sex institutions and single-sex programs. So is it discrimination under Title IX to say [to a trans woman]”Okay, you can come to our college, and you can play sports, but you can’t play women‘s sports”?
I believe there is a very compelling and reasonable interpretation of Title IX that entitles trans students to be treated as the gender they identify with for the purpose of participating in sports, using locker rooms and bathrooms and to be assigned to dormitories. There are people who disagree with this interpretation, and there is also a gray area in that all sorts of conditions can be placed on a transgender student‘s participation in athletics. So, for example, at the college level, it has always been required that a trans woman participating in women’s sports have undergone a hormonal transition to make her body more like that of a cisgender woman. On the other hand, in the K-12 context, where Title IX also applies, requiring students to undergo medical treatment that they might not be ready to decide for athletic purposes seems to be a much heavier burden on the student for athletics, which are much less competitive and more participatory.
Different government entities will have a role to play in shaping this clarification. The Department of Education may eventually look into this matter and clarify it. If that doesn’t happen, or even if it does, the courts also have a role to play here, as states banning the participation of trans women and girls in sports are being challenged in court. The outcome of these cases, the court decisions that will flow from these cases, will also shape the rights of trans students.
What are the arguments against Title IX?
I don’t think people are arguing that Title IX should be taken out completely. We see arguments related to the scope of protections that exist under Title IX. Some of the burning issues are the application of Title IX outside of the context of athletics. There is currently a debate in the political sphere — and indeed an ongoing effort to revise Title IX regulations — that largely has to do with how schools handle situations of sexual misconduct between students. There are people who believe that schools should have the flexibility to suspend and expel students who engage in sexual misconduct. The counter-argument to this is not so much that schools should not be able to expel students who engage in sexual misconduct, but that they should have to go through criminal trial-type procedures to achieve to this conclusion. So I wouldn’t say that’s an argument against Title IX, but how well does Title IX protect students who have been victims of sexual misconduct?
How can we advocate for Title IX?
Until there is pressure on an institution to actually consider whether it is in compliance with any of the three Title IX prongs, colleges and universities — as well as K-12 institutions — often put it off until later. it won’t happen until someone puts their feet in the fire and triggers an honest self-analysis.
My advocacy tips are for everyone [reading this] to take an institution close to their hearts and start digging into some basic compliance analysis. The identity of any institution’s Title IX coordinator should be available on the school’s website. Often Title IX coordinators really focus on sexual misconduct and other things. But they should be able to get information about that institution’s athletics compliance.
Anyone can file a complaint with the Ministry of Education. On the Civil Rights Office website, you will find a link that will take you to a complaint form. You do not need to have a specific link with an institution. You can describe what you think is a Title IX violation in your own words. They are required to read it. They can initiate an investigation based on a complaint from a member of the public. Putting more pressure on athletic departments in this way is one way we are helping close the compliance gaps that remain 50 years after Title IX was passed.
Photo courtesy of Springfield College