Comment Submitted to the U.S. Department of Education in Response to its 2022 Proposed Title IX Rulemaking

Abstract

In this short piece, Gail Heriot and Peter N. Kirsanow comment on the U.S. Department of Education’s proposal for a rule that would require federally funded schools to assign transgender students to the bathrooms, locker rooms, and showers set aside for the sex with which the students psychologically identify (rather than the bathrooms, locker rooms, and showers set aside for the sex that match their anatomy and chromosomes). Heriot & Kirsanow take the position that the proposed rule is inconsistent with Title IX itself. According to The two commissioners, the statute unambiguously gives schools discretion on this issue. Such discretion allows schools to act in the way they believe to be in students’ best interest (which may vary from case to case). This comment was filed by Heriot & Kirsanow in their capacities as individual members of the U.S. Commission on Civil Rights and not on behalf of the Commission as a whole.

Keywords: Transgender, showers, locker rooms, bathrooms, Title IX