The Oklahoma Bar Journal September 2022

Drew Adams was identified as female at birth and in eighth grade identified himself as male. 30 In high school, he transitioned by cutting his hair short, wearing more masculine clothing, binding his chest to flatten his breast tis sue, taking hormones to stop his menstrual cycle and masculinize his body and ultimately having a bilateral mastectomy to remove his breast tissue. 31 In ninth grade, he used the boys’ bathroom for six weeks until two female students complained to the administra tion they had seen him entering the boys’ bathroom. After the complaint, the school district’s administrators gave him a choice of using the girls’ bathroom or using a single-stall gender-neutral bathroom. 32 Unsatisfied with these options, he sued the school dis trict, alleging the school district violated his right to equal protec tion and his rights under Title IX by prohibiting him from using the boys’ bathroom at school. 33 In the first decision by the 11th Circuit three-judge panel, the court concluded that the school dis trict’s bathroom policy served an

sought a stay on appeal. 25 The 6th Circuit Court of Appeals con cluded the school district was not likely to succeed on the claim because Title IX prohibits discrim ination based on sex stereotyping and gender nonconformity. 26 In 2017, the 7th Circuit Court of Appeals upheld a trial court’s grant of an injunction prohibiting a school district from denying a student who was born female but identified as male from using the girls’ bathroom or a single-occupancy bathroom. 27 Relying in part on determinations of other courts that had concluded that transgender employees were pro tected by Title VII, the court deter mined that discrimination on the basis of gender identity of students is likewise “sex” discrimination, which is prohibited by Title IX. 28 In consid ering the plaintiff’s Equal Protection Clause claim, the court specifically rejected the school district’s argu ment about protecting the privacy of other students. 29 After the Bostock decision, two appellate courts cited Bostock to reach the same conclu sion, holding that Title IX protects transgender students from discrim ination based on gender identity.

clear that Title VII’s protections apply to an employee’s sexual ori entation or transgender status. 18 While the issue of transgen der students was not before the court in Bostock , Justice Alito’s dissent recognized that similar issues have arisen under Title IX and noted several circuit court cases that were facing the issue of students barred from using a bathroom based on their biological sex versus the sex with which they identify. 19 Likewise, Justice Alito’s dissent also raised the issue of transgender individuals partici pating in women’s sports. 20 the United States shall, on the basis of sex, be excluded from participa tion in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal finan cial assistance …” 21 All Oklahoma public schools, including charter schools, receive federal financial assistance and are thus subject to Title IX. It is well established that Title IX is a source of individual rights for alleged sex discrimi nation, including sexual harass ment. 22 When considering cases of alleged discrimination under Title IX, courts have routinely considered the same legal analy sis as Title VII cases. 23 Prior to the United States Supreme Court decision in Bostock , several federal appellate courts and district courts were addressing the issue of transgender students in school, specifically as to the use of particular bathrooms. The United States Department of Education (DOE) attempted to enjoin a school district from excluding a trans gender girl from using the girls’ restroom. 24 The trial court granted the DOE’s request for a preliminary injunction, and the school district TITLE IX CASES Title IX provides, “No person in

Other courts have also addressed the issue of transgender students and school bathroom policies, where the school policy allowed transgender students to use the bathroom based on their gender identity rather than their biological sex.

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THE OKLAHOMA BAR JOURNAL