Unanswered Questions on OCR’s About-Face on Transgender Rights

Franczek P.C.
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Franczek P.C.

Yesterday, the U.S. Department of Education’s Office for Civil Rights, or OCR, issued a Notice of Interpretation stating that Title IX of the Education Amendments of 1972 prohibits discrimination against LGBTQ+ students and employees in public schools, colleges, universities, and other recipients of Department funds. This would not necessarily be big news, because the United States Supreme Court recently recognized similar rights for employees under Title IX’s sister statute, Title VII of the Civil Rights Act of 1964. But it is news for schools. It’s the next chapter in OCR’s ever-changing position on this important question (from vigorous enforcement under the Obama administration to the Trump administration’s flip-flop in 2017 and subsequent clarification after Bostock in 2020). And although the information ED released today answered some questions, many important questions remain.

The Notice of Interpretation

The NOI explains that although OCR has long recognized that Title IX protects LGBTQ+ individuals and individuals who do not comply with gender-based norms from discrimination, OCR has “at times” stated that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity. OCR intends the NOI “[t]o ensure clarity” by clarifying that Title IX’s prohibition on discrimination “on the basis of sex” encompasses discrimination on the basis of sexual orientation and gender identity.

The main takeaways of the NOI are as follows:

  • There is no persuasive or well-foudned basis for declining to apply Bostock’s resasoinnig to Title IX’s parallel prohibition on sex discrimination in federally funded education programs and activities. Bostock held that sex discrimination, as prohibited by Title VII, encompasses discrimination based on sexual orientation and gender identity, and OCR has determined that the Court’s interpretation of sex discrimination applies equally to Title IX. There is textual similarity between Title VII and Title IX. Both statutes prohibit sex discrimination using language that the Court has used interchangeably (“on the basis of” and “because of” sex). Both statutes also specifically protect individuals against discrimination. And neither statute includes an exception for sex discrimination that is associated with an individual’s sexual orientation or gender identity. Finally, just as with Title VII, there is no ambiguity about how Title IX’s terms apply to a situation involving allegations of discrimination against several individuals based on sexual orientation or gender identity.
  • Numerous federal courts have relied on Bostock to recognize that Title IX prohibits discrimination based on sexual orientation and gender identity and have decided that such an interpretation is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of discrimination. As many courts have recognized, treating gay, lesbian, or trangender students differently from other students may cause harm and should be prohibited under the same reasoning as Bostock.
  • The U.S. Department of Justice’s Civil Rights Division has concluded that Bostock’s analysis applies to Title IX. 

Accordingly, the NOI says that OCR will “fully enforce” Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive ED funds. Complaints must meet jurisdictional and other requirements applicable to all OCR cases, but when they do, OCR will investigate the allegations and require corrective action when violations are found. The NOI states that it supersedes and replaces any prior inconsistent statements made by OCR.

The administrators I know and work with at the K-12 and higher education levels want to do what is legal, what is right, and what is best for their students. It’s unbelievably hard to do that when the rules are constantly shifting, and nowhere can this be seen as clearly as in the realm of Title IX.

The NOI interpretation does not entirely conflict with the outgoing Trump-OCR’s interpretation of Title IX. After Bostock, the Trump OCR begrudgingly agreed in August 2020 that Title IX covers discrimination against individuals based LGBTQ+ status. But it stated that some types of different treatment based on LGBTQ+ status would not be illegal discrimination, like preventing unfettered access to facilities such as restrooms and locker rooms and participation on athletic teams that correspond with a person’s gender identity but not their sex assigned at birth. Now, based on the NOI, OCR has made clear that it will fully enforce Title IX to prohibit all types of different treatment based on sexual orientation and gender identity in education programs and activities that receive ED funds. The NOI states that OCR will investigate allegations of individuals being excluded from, denied equal access to, or subjected to sex stereotying in academic or extracurricular opportunities, or otherwise treated differently because of their sexual orientation or gender identity. Although the words “bathroom,” “restroom,” “locker room,” and “athletics” do not appear in the NOI, it seems likely based on the Obama administration’s enforcement of Title IX that OCR will expect schools to offer equal access to facilities and athletics teams based on the NOI.

What Does It All Mean

In a 30-minute call yesterday afternoon with 100 interested groups, including Franczek P.C., OCR’s Acting Assistant Secretary for Civil Rights, Suzanne Goldberg, declared that OCR is “open for business” for complaints alleging discrimination based on gender identity. Unlike under the Trump administration, schools should expect that OCR will open and investigate complaints filed by individuals and groups seeking equal access for LGTBQ+ students and employees under Title  IX going forward. The Assistant Secretary also mentioned that OCR will pursue “compliance reviews” against schools that are not in compliance with the NOI.

But when will this all end? What if there is another change in power at the executive level in 2024? Will we have to go through this all again? Since 2011, school leaders have been jumping through OCR’s hoops with respect to learning, implementing, and complying with ever-changing Title IX rules. School leaders need–and deserve–stability in this area of law.

The Assistant Secretary did not address many lingering questions:

  1. Will schools be provided any “runway” to change policies and procedures to align with the new interpretation? On Monday of this week, OCR’s public position was that Title IX did not prohibit all different treatment of LGBTQ+ individuals in schools. That interpretation shaped some schools’ approaches to requests by LGBTQ+ students, in jurisdictions where state law did not hold otherwise. Nonetheless, it appears that OCR will begin vigorously enforcing the law against schools immediately. Educational institutions should review their policies and procedures now and consider if changes to policy or practice are necessary in light of the NOI.
  2. What help will OCR provide schools to come into compliance? The Assistant Secretary mentioned a desire to work with schools to come into compliance instead of using OCR’s traditional “hammer.” That hammer involves OCR investigating complaints and, where it finds a violation, imposing a resolution agreement on the school that OCR then monitors. Investigations and monitoring are notoriously time-intensive and expensive. In my decade-plus experience as a school lawyer and years as an OCR attorney, I can’t think of a situation in which OCR helped a school comply with the law in any way other than the “hammer.” It would certainly be a welcome option, if OCR truly found some other tools to help. Perhaps OCR could redirect team members from investigations to voluntary “audits” of a school’s program under a confidentiality agreement, with a commitment from OCR that it would not pursue any enforcement against the school based on what OCR learned during the process. OCR could partner with state school boards’ associations, which write policies and procedures used by K-12 schools in most states, to craft policies that OCR agrees meet their standards, instead of attacking these policies one by one during investigations against individual schools. There are many creative options available to OCR other than the normal “hammer.” We will have to wait to see if, for once, OCR actually decides to use them.
  3. What steps will OCR and the federal government take to stop the flip-flopping on Title IX rules for schools? Schools are at the center of the culture wars in our country. Yet despite tales described in lawsuits across the country of school administrators willfully–sometimes gleefully–trampling on the rights of students, the administrators I know and work with at the K-12 and higher education levels want to do what is legal, what is right, and what is best for their students. It’s unbelievably hard to do that when the rules are constantly shifting, and nowhere can this be seen as clearly as in the realm of Title IX. Much of the call with the Assistant Secretary yesterday focused on a Q&A that OCR intends to release, it seems over the summer, addressing Title IX sexual harassment. We expect the Q&A to roll back as much of the 2020 Title IX regulation as possible without rulemaking. The Assistant Secretary also addressed the rulemaking that we expect to see from OCR on Title IX sexual harassment, now that OCR’s virtual public meeting has ended. It seems likely that we will have a whole new set of rules to learn and comply with in the coming year or so. But when will this all end? What if there is another change in power at the executive level in 2024? Will we have to go through this all again? Since 2011, school leaders have been jumping through OCR’s hoops with respect to learning, implementing, and complying with ever-changing Title IX rules. School leaders need–and deserve–stability in this area of law. Whether, and how, the current OCR will help provide that is probably the most important lingering question after the NOI, and there is no answer in sight.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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