TrackWith Guest Authors Jennifer Smith and Kendra Yoch

Litigants challenging the opening of women’s restrooms and locker rooms in schools to transgender females have roundly been defeated. While the Supreme Court could always change the trend, cases like Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board  show that it is increasingly settled that students and employees must have access to facilities consistent with their gender identities. Activist litigants, however, such as Alliance Defending Freedom (ADF), have turned their attention to a different issue: transgender athletes’ participation in women’s sports.
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The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students.
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