A (Not So) Simple Question: Does Title IX Encompass “Gender”?, 51 J. Marshall L. Rev. 225 (2018)

This article has five sections. Section I looks at critical, operational, definitions of “sex” and “gender.” As we shall see, the terms are not synonyms. That distinction is important as section II takes us back to Title IX’s original text. That language prohibited discrimination based on sex, but it remains silent on the issue of gender.

Section III then examines how Title IX evolved in terms of depth, breadth, and scope. The most recent expansion brought campus sexual violence procedures under Title IX. That development may be particularly thought provoking as sexual violence, like gender, is not part of Title IX’s text. However, even recognizing this absence, section IV analyzes how Title IX may still encompass gender discrimination.

Finally, section V looks at “where we are” in terms of Title IX and gender, including recently created ambiguity and uncertainty.