Jane Doe is an eleven-year-old transgender girl who has identified as a girl since she was three. She moved to the Mukwonago Area School District in third grade and used the girls’ restroom for almost three years with no issues. Toward the end of her fifth-grade year, in the spring of 2023, the School District and its superintendent began denying her access to the girls’ restrooms at school and requiring her to use the boys’ or single-occupancy restrooms, having school staff monitor her bathroom use, and threatening disciplinary action if she did not comply with these rules. In June of 2023, the school board enacted an official policy requiring students to use the bathroom that corresponds with their assigned sex at birth. Jane Doe and her mother filed a lawsuit against the School District and its superintendent for violating Title IX of the Education Amendments of 1972 and the Equal Protection Clause. They sought emergency relief, and the judge entered a preliminary injunction in July that prohibits the District from enforcing any policy that denies Doe access to the girls’ restrooms or takes disciplinary action against her for using them.

CAC filed an amicus brief in support of Doe explaining that the school board’s policy constitutes discrimination on the basis of sex, which is prohibited by Title IX. Under Title IX, transgender persons must be treated with equal dignity and given access to an educational environment where they can learn, thrive, and grow free from discrimination.

The text of Title IX broadly protects all individuals, including transgender people, from gender discrimination in federally funded education. Title IX’s text, subject to narrow exceptions not relevant here, provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This deliberately broad language was meant to fill in a gap left by Title VI of the Civil Rights Act. Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin,” be subject to “discrimination under any program or activity receiving Federal financial assistance.” This ensured that federal funds, such as those going to public and private schools, were spent in accordance with the Equal Protection Clause’s prohibition on racial discrimination, but it left sex discrimination untouched.

As the Supreme Court has explained, Title IX was modeled on Title VI, using language that, “like that of the Equal Protection Clause,” is “majestic in its sweep.” Title IX prohibits discrimination whenever sex is a but-for cause of the plaintiff’s injuries, and provides that “no person in the United States” may be denied “access to educational benefits and opportunities on the basis of gender.” The broad sweep of Title IX, extending to all persons, plainly prohibits discrimination against transgender students such as Jane Doe.  The Supreme Court’s recent decision in Bostock v. Clayton County effectively settles this. There, the Court held that Title VII’s prohibition on sex discrimination in employment forbids transgender discrimination.  As the Bostock Court recognized, “discrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” This rationale applies equally to Title IX, which contains a broad prohibition on sex discrimination in education that is virtually indistinguishable from the text the Supreme Court interpreted in Bostock. Thus, under settled law, transgender students like Jane Doe may invoke the promise of equal educational opportunity that Title IX guarantees to all.

The School District’s policy here discriminates against Jane Doe on the basis of sex in violation of Title IX. By denying Jane Doe the right to use the bathrooms used by other girls and forcing her to use either the boys’ bathroom or one of two inconvenient, single-occupancy bathrooms, the School District segregates her from otherwise identical students who were identified as “female at birth.”  The School District’s policy treats her differently than other students because she does not conform with sex stereotypes. Punishing a student for gender non-conformance violates Title IX, as does subjecting a transgender student to different rules, sanctions, and treatment than non-transgender students. By discriminating against Jane Doe in this way, the policy robs her of her dignity and stigmatizes her, branding her with a “scarlet ‘T.’” Transgender students also face tangible harms when prohibited from using the bathrooms consistent with their gender identity, including harmful medical and academic consequences.

While Title IX allows an “exception for sex-based distinctions in terms of living, restroom, and shower facilities,” nothing in the statute’s text or history suggests that Congress intended to create a requirement that sex-based distinctions be based on anatomy alone. And while Title IX’s regulations permit school authorities to maintain separate bathrooms for boys and girls, they do not give school authorities the right to discriminate against transgender students by separating them from their peers and stigmatizing them.

In short, the School District’s policy cannot be squared with the promise of gender equality that Title IX promises to all students, including those, like Jane Doe, who are transgender.