On January 8, 2021, the U.S. Department of Education’s Office of Civil Rights issued a memorandum containing its interpretation of Bostock v. Clayton and its lack of effect on OCR’s interpretation of Title IX. The U.S. Supreme Court, in Bostock, definitively ruled that Title VII, the federal law that prohibits sex discrimination in employment, protects employees who are discriminated against because they are transgender and/or homosexual. Throughout the memorandum, OCR continues to espouse its interpretation of Title IX as excluding protections for transgender students and insists that Title IX applies to students only on the basis of biological sex.
In the Memorandum, OCR’s Deputy Counsel unequivocally states that it is his position that the term “sex” in Title IX means “biological sex, male or female.” This Memorandum was issued the day after Betsy DeVos resigned as Secretary of Education and mere days before President-Elect Biden will be sworn in as President. Despite this, OCR doubles down on its directive that allowing transgender students to engage in sex-segregated activities such as athletics and/or the use of single sex facilities such as bathrooms and locker rooms that match their gender identity are per se violations of Title IX.
While recognizing that discrimination against and/or harassment of a student or employee because the person is transgender or homosexual may constitute discrimination on the basis of sex, OCR opines in the new memorandum that in other situations, Title IX may “require” consideration of the person’s biological sex. Surprisingly, OCR goes beyond this, and provides examples of things that OCR unequivocally states would not violate Title IX. These include: (1) “recording a student’s biological sex in school records,” (2) “referring to a student using the sex-based pronouns that correspond to the student’s biological sex,” (3) or “refusing to permit a student to participate in a program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality.”
OCR’s memorandum addresses several different types of educational situations including athletics, intimate facilities, and sex-segregated programs.
In the new memorandum OCR continues to take the position that districts are required by Title IX to provide for athletic teams that “separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality….” To this end, OCR espouses that one of the crucial purposes of Title IX is to protect cisgender women’s and girls’ athletic opportunities. Oddly, OCR goes so far as to opine that “Different treatment based on transgender status or homosexuality would generally constitute unlawful sex discrimination because students who do not identify as transgender or homosexual cannot generally be treated worse than students who identify as transgender or homosexual.” Thus, OCR continues to take the position that a district allowing a transgender athlete to play on a single-sex team of the gender with which the student identifies is a per se violation of Title IX.
OCR similarly doubles down on its belief that pursuant to Title IX, districts that provide “separate toilet, locker room, and shower facilities on the basis of sex” are required to “regulate access based on biological sex.” OCR opines that the Fourth Circuit Court of Appeals in Gramm v. Gloucester County Board of Education and the Eleventh Circuit of Appeals in Adams by and through Kasper v. School Board of St. John’s County got it wrong when they held that denying a biological female who identified as male access to intimate facilities such as bathrooms and locker rooms that were reserved for males violated Title IX. OCR unequivocally states that the treatment transgender individuals receive must be compared to the treatment of students who share their biological sex, not the sex with which they identify.
Other Sex-Segregated Programs and Activities
In the new memorandum OCR also provides a list of other sex-segregated programs and activities that it believes must be based on biological sex. Some of these include: (1) admissions policies of any public institution of higher education that has a policy of admitting only students of one sex; (2) membership practices of certain organizations such as social fraternities and sororities at institutes of higher education, (3) membership in organizations such as the Girl Scouts, (4) participation in separate mother-daughter and father-son activities, and (5) participation in single-sex classes and extracurricular activities.
Needless to say, as discussed by my colleague Michael McKeon in a prior post, Connecticut law is in direct conflict with OCR’s current interpretation of Title IX. Furthermore, on December 7, 2020, the U.S. Supreme Court declined to hear an appeal from the Ninth Circuit Court of Appeals decision in Parents for Privacy v. Barr, a case in which the Ninth Circuit ruled in favor of a school district’s policy of allowing students to use the locker room according to their gender identity, thus allowing the district’s policy to stand. School districts in Connecticut continue to be torn between complying with competing federal guidance and state laws. With a new President and Secretary of Education on the horizon, however, it seems extremely likely that the impact of OCR’s new memorandum may be very short-lived.