Persons who are transgender have been documented in nearly all cultures and societies from antiquity until the present day. The meaning of gender nonconformity varies from culture to culture. While sex is assigned at birth, gender refers to the constructed roles, behaviors, activities, and attributes that any given society considers appropriate for boys and men or girls and women. In the United States in particular, we have adopted the umbrella term “transgender for persons whose gender identity, expression or behavior do not conform to that typically associated with the sex to which they were assigned at birth.

What does any of this have to do with the 14th Amendment? And, how does Title IX under the 14th Amendment come into scrutiny or jeopardy? We need to look at the evolution of a few laws on human rights to understand this better. Yes, human rights are governed. We, as individuals, cannot seem to find acceptance or tolerance for various pockets of individuals on our own, so lawmakers tell us what is just and fair. It might be a perfect time to stress how important it is to vote to ensure that your rights are protected.

On April 12, 1861, the United States were so divided on the rights, liberties, and expressions of its citizens that it engaged in a great civil war resulting in over 1,000,000 casualties. To think that our fellowman was willing to raise arms, fight neighbors and defend a qualified right at the time, slavery, is unimaginable to hopefully all of its citizens today. This war lasted until May 26,1865. Prior to this war slavery was an accepted practice and it took laws to change how we as a society conformed to new social constructs.

The Thirteenth Amendment to the United States Constitution freed slaves and abolished slavery in December 1865; however, it did not spell out what happens next. What rights were individuals allowed to have? This affected not only the slaves, but the slave owners. We needed the 14th Amendment for that which was ratified in 1868 and signed into law by President Andrew Johnson.

There are five sections to the 14th Amendment:

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

If we take a close look at section 2, we see that mostly we are concerned with voting rights which have throughout history aligned with overall rights somewhat. In section 2, non-taxed Indians and women were excluded from receiving equal rights as white and black men over 21. (Even within this latter named group there are some exclusions.) It is clear why groups who were not granted rights in this Amendment might take exception and why there continues to be a continuous evolution of modifications. At this time, consider whose voices were being heard. If you had no rights, did you have a voice? Who was championing those who had no voice?

The 19th Amendment, for example, was first introduced to Congress in 1878. Ten years have passed since the 14th Amendment. So why did it take 42 years to finally be certified in 1920. This Amendment legally guarantees women the right to vote. Several generations of women suffrage supporters lectured, marched, picketed, went on silent vigils and hunger strikes at the expense of heckling, jail time and often times physical abuse. President Woodrow Wilson, who was awarded the 1919 Nobel Peace Prize for creating the League of Nations, saw to granting women the right to vote and the passing of child labor laws.  One would think amending the language of the 14th Amendment would have been a simpler course of action, and an action that seemed less divisive among the sexes, however women, as well as men, now have the right to vote. Again, with this new milestone, the right to vote has not constituted overall societal rights. How many people believed this to be equality? Remember, this is 1920 so we still have a way to go before women are accepted in the workplace, are allowed to transact banking, or own real estate without a man’s signature. This was how we accepted society’s norms. We all conformed to these modes of thinking and acceptance. I make this point, so we make sure to check our values and acceptance along this timeline journey.

It took women nearly half a century to earn voting rights after the ratification of the 14th Amendment. We have to move ahead nearly another half a century to appreciate the Civil Rights Act of 1964.

In theory, since people had overall voting rights, there was an overarching perception in society that all people had equal rights. Yet, we segregated schools, places of worship, restaurants, public facilities, such as bathrooms and drinking fountains and more. Clubs and establishments could refuse to serve people of color, women or socio-economic status. Public transportation had seating for “whites” and “colored” and would even bump non-white passengers from their seats if a white passenger had no seat, and without reimbursing the ticket. These brief examples do not give justice to the extreme systemic oppression endured by people of color at the time. We must note here that allowing these practices was the societal conformity of acceptance at the time.

In a nationally televised address on June 6, 1963, President John F. Kennedy urged the nation to take action toward guaranteeing equal treatment of every American regardless of race. Soon after, Kennedy proposed that Congress consider civil rights legislation that would address voting rights, public accommodations, school desegregation, nondiscrimination in federally assisted programs, and more.

Despite Kennedy’s assassination in November of 1963, his proposal culminated in the Civil Rights Act of 1964. President Lyndon Johnson signed it into law just a few hours after it was passed by Congress on July 2, 1964.

It may seem like it took a while to get to Title IX of the 14th Amendment because, yes, it did. It took a little over one hundred years to realize that we cannot discriminate on the basis of sex. Again, the Civil Rights Act of 1964 stated that we cannot discriminate on the basis of race, but apparently, we needed the law to tell us that cannot discriminate on the basis of sex. Let’s check ourselves for just a moment. Why is it that as a society we don’t accept first, but discriminate first?

When U.S. Sen. Birch Bayh from Indiana authored the words: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” Title IX came into being. On June 23, 1972, President Richard Nixon signed the bill into law.

Sen. John Tower proposed that athletics be exempted from Title IX. Because he made such a big deal of it there is widespread misunderstanding that it’s a sports-equity law, rather than an anti-discrimination, civil rights law. The original language made no mention of sports but has afforded inclusion of women’s athletes making opportunities available to both boys and men and girls and women.

The Legislative Branch. In early 1988, the Senate and House of Representatives each responded to the Supreme Court decision by passing legislation (Civil Rights Restoration Act of 1987) which clarifies that a “program or activity,” for purposes of Title IX and other civil rights laws, refers to “all operations” of an institution whenever federal financial assistance is extended to “any part” of the institution.

The Executive Branch. On March 16, 1988, President Reagan vetoed (link is external) the legislation on grounds that it “vastly and unjustifiably expand[s] the power of the [f]ederal government over the decisions and affairs of private organizations.”

The Legislative Branch. On March 22, 1988, Congress overrode the President’s veto by passing again the legislation with the support of a two-thirds majority in the House and Senate. As a result, the Civil Rights Restoration Act became law.

The Obama administration interpreted Title IX to cover discrimination on the basis of assigned sex, gender identity, and transgender status.

The Trump administration determined that the question of access to sex-segregated facilities should be left to the states and local school districts to decide.

The Biden administration reverses the Trump administration determination and follows federally ruled guidelines with regard to gender identity.

Scope of Title IX Today

Title IX applies to schools, local and state educational agencies, and other institutions that receive federal financial assistance from the Department. These recipients include approximately 17,600 local school districts, over 5,000 postsecondary institutions, and charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories of the United States.

A recipient institution that receives Department funds must operate its education program or activity in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity. Some key issue areas in which recipients have Title IX obligations are: recruitment, admissions, and counseling; financial assistance; athletics; sex-based harassment, which encompasses sexual assault and other forms of sexual violence; treatment of pregnant and parenting students; treatment of LGBTQI+ students; discipline; single-sex education; and employment. Also, no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in a proceeding under Title IX. For a recipient to retaliate in any way is considered a violation of Title IX. The Department’s Title IX regulations (Volume 34, Code of Federal Regulations, Part 106) provide additional information about the forms of discrimination prohibited by Title IX.

An interesting Gallup poll asked people to estimate the number of people they thought made up the gay population. The adults polled came up with about 23%. The actual number of American adults who disclose on Gallup polls is 7%. Are either of these numbers accurate? When will the stigma be nonexistent so people are comfortable disclosing this type of information? I have two thoughts colliding at the same time. 1.) Why does this matter? 2.) Do we need this information to arrive at acceptance and inclusion?

When will our societal norm be to accept this group of people fully? When do we stop teaching pink is for girls, blue is for boys; boys don’t cry; girls can’t be…?

So, we don’t know what we don’t know. Identifying as transgender is on the rise. The reason Title IX is getting another close look right now because of its impact on sports. Women fought very hard to have rights of all kinds. In the sports arena, they had to fight harder to be taken seriously among men athletes. Reasons that go beyond providing dual locker rooms or sharing facilities lead us to physicality that separates the two.

In wrestling we have weight classes. In golf we have separate tee boxes. But, in most other sports it comes down to size, athletic prowess, power and fitness. Typical female and male physicalities are no match for each other, so how can we blend the two? Do transgender females create unfair advantages physically for female athletes? If we are looking at the .07% of self-identifying transgender individuals, are we recruiting a “ringer” for our teams, or is it a fair playing field? What’s not fair is closing our minds to the discussion and not finding a place for this group of incredible people.

From 1947- 1968, Eunice Kennedy Shriver dedicated herself to global research and founding of Special Olympics. She fought for over 21 years to promote respect, inclusion and acceptance of people with intellectual disabilities before Special Olympics was officially launched. Great strides for inclusion and acceptance have advanced significantly over the years for this group of athletes.

In Special Olympics, there is a physical disability that presents as a barrier to being included in conventional sports. This is not the case for athletes who are transgender. If we knew the exact number of athletes, could we have “a league of their own”?

Doing the right thing may be stepping out of your current societal comfort zone to understand transgender better. It will also be finding out if your legislature understands the issues at hand and are willing to delve into real solutions that are fair and equitable for all affected by these decisions. As you can note from the history cited here, changing a law can take up to 50 years. Let’s get this right.

Do you know the name of your state Representative and 2 State Senators?

These are 3 people representing your state and you directly. Google them. Call them up. Write an email. They appreciate your vote and would like to hear from you. One of them could possibly live in your neighborhood.

Do you know the name of the U.S. Congressman who represents your district and the 2 Senators who represent your state?

It’s their job to hear from you! They represent you! Questions or concerns you have may be theirs as well. If they weren’t before you called, or emailed, or met, they are now! If they don’t have an answer, inspire them to dig deeper to find the answer.

When Birch Bayh wrote words 51 years ago, I don’t know if he knew the impact of such legislation for years to come. Let’s demonstrate how much we have all grown in our societal conformity of acceptance and inclusion. We can’t wait another 50 years!