Outside the binary: How Title IX protections affect transgender Nebraskans

Nov. 15, 2021, 6 a.m. ·

Graphic with words "Trans Rights & Title IX" with people and flags in the background
(Photo Illustration by Daniel Wheaton)

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As more young people come out as transgender, exactly how to apply Title IX is becoming a recurring question.

The law is supposed to ensure equal access to education for both genders, but as a law written in the '70s, it does not address people who live outside of the gender binary. While colleges and universities have more leeway -- as most students are adults -- ensuring equity for transgender teens is more complex. The Biden Administration is open to adapting Title IX to more modern understandings of gender, but there's disagreement at the state and local level.

Will and Jillian

On a sunny, windswept day in November, 15-year-old Will Statmore and his mom, Jillian Carter sit on their living room couch. Norman Rockwell’s "The Problem We All Live With" is proudly displayed on the wall behind them.

Willa and Jillian sitting next to each other on a couch with a wall with pictures on it behind them and a red vase with flowers to the side of them.
15-year-old Will Statmore (left) and his mom Jillian Carter (Right). (Photo by William Padmore, Nebraska Public Media News)

Initially, he had come out as a lesbian," explains Jillian, "and we were like, 'Oh, whatever.' And then he decided to turn it into a joke as far as, so I do like girls, but I'm not gay. It took me a while to process what that meant.“

Will, a biological girl, came out to his parents as a transgender boy when he was twelve.

“Oh, it was just sort of really nerve-wracking. Really, even though I know my family is awesome," Will said. " I just didn't know much about being trans and it was just really uncharted territory for me.”

Will and transgender students across the nation are at the center of a debate over who is protected under Title IX, and what those protections entail. Will, who attends Lincoln High School, wants the ability to use male locker rooms.

“Next semester, I was supposed to have a weight training class. So we were dealing with locker rooms, and they just didn't want me to use any of the locker rooms," Will said. He said he was told he would have to change in the nurse's office or use the coach's office.

"I don't feel like I fit in anywhere because of it," Will said.

Despite current federal guidance from the Department of Education and the Office of Civil Rights that transgender students are protected under Title IX, Will said he feels like he’s being discriminated against. Jillian said her son's safety and mental health are at risk. In an open letter sent to the district superintendent, she said Will is in therapy and is barely attending school because he doesn’t think it’s safe. While she notes teachers and faculty have been supportive, the district's seemingly dismissive approach to resolving the locker room issue is taking its toll.

“Not once in any of our discussions about this did they bring up Will's safety," Jillian said. "You know, if they had been concerned about Will’s safety or Will’s bullying or having someone who's biologically female in the men's locker room, that would have been one thing, but they did not ever mention his safety or care for him. They were only concerned about the other students and really, more than other students, they are concerned about those students’ parents because he's had a lot less issues with students than he does with adults.”

Jillian said she has filed complaints with the Office of Civil Rights which, under the Biden Administration, has promised to investigate schools that unlawfully discriminate against transgender students.

To understand more about transgender rights for students it’s helpful to understand another court case, Bostock vs. Clayton County.

Bostock vs. Clayton County

In this landmark decision, the Supreme Court ruled 6-3 that LGBTQ+ people are protected from employment discrimination under Title VII, a law that prohibits employment discrimination. The majority ruled language in the law referring to discrimination based on a person’s “sex” covered both gender identity and sexual orientation.

Using that logic, this year the U.S Department of Education expanded its interpretation of Title IX law, which also references a person’s “sex,” to include protections for gay and transgender students and staff.

Some think that amounts to executive overreach.

In August, Nebraska Attorney General Doug Peterson and more than a dozen other attorneys general signed onto a Tennessee lawsuit that claims the current administration’s interpretation goes well beyond the law’s original intent.

AG Peterson refused to comment on pending litigation, but Governor Pete Ricketts approved of the move.

Pete Ricketts
Pete Ricketts

“Yeah, I think that what the administration is doing when they're trying to interpret Bostock vs. Clayton County is really beyond the scope of what the U.S. Supreme Court was intending. In fact, it’s my understanding that the Supreme Court actually wrote that in there when they were making that decision,” Ricketts said.

Ricketts insists the state’s stance is not about making the transgender community feel targeted, but about adhering to the letter of the law and protecting biological women from competing against biological males

"So if someone has a personal preference with regard to the pronoun, I think we should be respectful and use that pronoun. But we also will be talking about matters of law here, which is exactly what we're talking about. Now, with Bostock, there are specific legal meanings, and then you have to stay within those meanings, or within the law," Ricketts said.

By expanding Title IX protections without consent of Congress or the public, Ricketts said the Supreme Court and Biden Administration are avoiding difficult, but necessary conversations on a sensitive issue that need to be had locally.

Differing Views

Sara Rips standing with her hands folded in front of her.
LGBTQ+ Civil Rights Lawyer Sara Rips. (Photo Courtesy of the ACLU of Nebraska)

Sara Rips is an LGBTQ+ civil rights lawyer with the ACLU of Nebraska and is representing Will and Jillian in Lincoln. She disagrees with Ricketts' reasoning.

"Giving schools the opportunity to otherwise isolate and discriminate against vulnerable people based on animus, is just unacceptable and it is shameful that our attorney general pursued litigation like this," Rips said.

Others in the legal field, though, think the lawsuit raises legitimate objections.

Christiana Holcomb is legal counsel with Alliance Defending Freedom, a Christian advocacy group, and has been trying to intervene in the case on behalf of three women athletes in Arkansas.

"Everyone is currently protected under Title IX on the same basis, which is on the basis of their biological sex, and that would continue if the lawsuit is successful," Holcomb said. "It would simply restore the protections that exist for everyone, and particularly ensure that female athletes continue to be protected on the basis of their sex, and have those fair and safe athletic opportunities that Title IX was designed to provide them.”

If Not Now, When?

Tennessee vs. The Board of Education is still pending, so the Biden Administration's guidance remains intact for now.

For Will and Jillian, however, they say whatever happens federally may be moot if Lincoln Public School officials continue to treat the guidance as just a suggestion. They say they want Will to be treated like any other student.

“Either you recognize that he is a boy and let him go to the boys’ locker room, or you're going to say, we don't believe in transgender kids," Jillian said. "They've completely decided that he's neither. and that's insane.”

When reached for comment, LPS responded Will’s case is still going through the district’s established process for such cases and the district won’t comment on specific student cases during the process.