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The U.S. National Center for Transgender Equality is celebrating a historic victory this weekend when the U.S. Court of Appeals for the 4th Circuit ruled unanimously for the first time that transgender students cannot be forced in school to use the bathrooms that match the sex listed on their birth certificates and gender identity documentation. Though the case has been appealed to the U.S. Supreme Court, there is little chance that the high court would take up the case unless it gets a big case like Gavin Grimm’s.
In an effort to protect transgender students, the federal Title IX law bans sex discrimination in all areas of public schools, including bathroom use. The Obama administration’s guidance, issued on April 6, 2015, is the most generous set of regulations on transgender bathroom access in history. By stating that schools must allow transgender students to use the bathroom and locker room consistent with their gender identity, the regulations are the most progressive of all the federal child sex discrimination laws, the first ones in history to apply to all students. Because the guidance is very comprehensive, it is also very confusing and sometimes confusing not just for parents, but for schools, police and prosecutors.
Some have claimed that the guidance is unconstitutional just because there is no requirement that schools allow transgender students to use the facilities and bathrooms that match their gender identities. However, when the Obama administration issued the rules in April 2015, it did not define “gender identity,” a vague term that often conflates two entirely different things, including “a student’s internal sense of gender, which can include a student’s gender identity and expression as a person’s true, internal self.”
While this is not the first instance, the Obama administration appears to be the first government to define so specific a word in such detail. The Department of Education’s guidance defines the term “gender identity” as an internal sense and feeling of being a person of one’s biological sex.
So, for example, if a transgender student feels female and is using a women’s restroom, school administrators may not
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