On the Basis of Sex (ual Orientation or Gender Identity): Bringing Queer Equity to School with Title IX

58 Pages Posted: 29 Jun 2018 Last revised: 5 Jul 2019

Date Written: February 20, 2018


A transgender fourth-grader’s teacher refuses to address her by her preferred name and gender. A lesbian high-school student’s sexual education class does not teach her about topics relevant to her experience as a queer woman. A gay male college student’s campus does not have LGBT specific post-sexual assault care. Under a formal equality approach to Title IX can any of these discriminations be remedied? Unfortunately not.

And yet, recent victories for the LGBT community have been won on formal equality arguments — that LGBT persons should be treated the same as heterosexual, cisgender persons. In the shadow of marriage equality, the LGBT community has pivoted towards fighting other aspects of discrimination, most recently in the educational setting. There they have continued to apply formal equality legal strategies. However, as this Note contends, the use of Title IX as a tool of formal equality is antithetic to the substantive equality theoretical underpinnings of the statute. In response, this Note imagines an approach that honors the substantive equality mandate at the heart of Title IX.

The results are transformative; once one appreciates the proposition that simply guaranteeing queer students access to existing services is insufficient to ensure that LGBT students actually receive equal access to the benefits of educational opportunities — Title IX becomes a comprehensive tool for advancing queer student equity. Ultimately, the Note concludes with an illustration of how Title IX can provide substantive equality for queer students at every level of the educational system.

Keywords: constitutional law, sexual orientation, gender identity, title IX

Suggested Citation

McNamarah, Chan Tov, On the Basis of Sex (ual Orientation or Gender Identity): Bringing Queer Equity to School with Title IX (February 20, 2018). 104 Cornell Law Review 745 (2019), Available at SSRN: https://ssrn.com/abstract=3200193

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