If you haven't read the recent press releases from the Department of Education reflecting their summer enforcement focus around Title IX, below we'll dive into what happened this month. Penn's agreement with the Office for Civil Rights ("OCR"), announced at the beginning of July, was big news; more recent actions show that OCR's attention is moving beyond sports.
On July 25, the Department of Education ("DoE") announced the conclusion of its investigation into five Virginia school districts ("the Districts"), which it found in violation of Title IX for having "anti-discrimination policies pertaining to 'transgender-identifying' students, which violate the sex-based protections of Title IX." The announcement refers to other suits, informal complaints and reports from female students of inappropriate behavior in restrooms and locker rooms. The full letter is not yet available, but the language of the press release makes clear that the focus is not on sports, and it is not on taking resources from female students. It is broadly about ensuring compliance with executive orders targeting transgender students, and specifically about these students' use of bathrooms and locker rooms.
The Department states that it has sought, in its proposed resolution agreement, the following from the Districts:
- Rescission of "policies and/or regulations that allow students to access intimate facilities based on their 'gender identity' rather than their sex;"
- Issuance of a memorandum to each division's school "explaining that any future policies related to access to intimate facilities must be consistent with Title IX by separating students strictly on the basis of sex, and that Title IX ensures women's equal opportunity in any education program or activity including athletic programs;" and
- Adoption of "biology-based definitions of the words 'male' and 'female' in all practices and policies relating to Title IX."
OCR gave the Districts 10 days to agree to its proposed resolution or "risk imminent enforcement action including referral to the U.S. Department of Justice."
To be clear, DoE's position is consistent with the Trump Administration's stated agenda and Executive Orders; it conflicts, however, with precedent set in the Third, Fourth, Seventh and Ninth Circuits allowing students to use bathroom and locker room facilities consistent with their gender identity. See Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017) (finding it could violate Title IX to prohibit a transgender boy from using the boys' bathroom); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) (same); Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018) (finding policy allowing transgender students to use bathroom consistent with their gender identity did not constitute sex discrimination); Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020) (same); but see Adams ex rel Kasper v. Sch. Bd. Of St. Johns Cnty., 57 F.4th 791, 840 (11th Cir. 2022) (finding that separation of school bathrooms by biological sex does not violate Title IX). The position also contradicts the Department's own internal precedent from 2015, when, in a landmark decision, it found that a suburban Chicago School District violated Title IX for denying a student access to locker room facilities consistent with her gender identity. Finally, the Department's position conflicts with Virginia's Human Rights Act, which expressly prohibits discrimination on the basis of gender identity. See VA Code § 2.2-3900.
Consider the parallels between the commonwealths of Virginia and Pennsylvania at this point: both are in Circuits that have issued rulings allowing transgender students to use bathrooms consistent with their gender identity; both have laws or regulations specifically prohibiting discrimination based on gender identity. See 16 Pa. Code § 41.206. Therefore, schools in either jurisdiction could point to both binding federal court precedent and state law to justify allowing transgender students to use facilities consistent with their gender identity. However, the Department has made clear that this does not save them from a finding of noncompliance with Title IX and the threat of "imminent enforcement action including referral to the U.S. Department of Justice."
Also on July 25, DoE announced that it had opened an investigation into the Oregon Department of Education ("ODE") based on a complaint it received from the America First Policy Institute alleging Title IX violations in athletics. ODE is accused of "permitting males to compete in women's sports," consistent with published guidance pertaining to its state antidiscrimination law, ORS 659.850.
What is notable in the ODE press release is the inclusion of a statement that "state laws do not override federal antidiscrimination laws, and ODE and its member schools remain subject to Title IX and its implementing regulations" – which repeats nearly verbatim the statement made in connection with prior, similar investigations of the Minnesota State High School League and the California Interscholastic Federation. This is technically true. But the inference behind the statement—that state laws providing protections for transgender students for bathroom access or sports participation inherently conflict with Title IX—though the position of the Trump administration, is not settled law. If it were, the Supreme Court presumably would not have granted certiorari in Little v. Hecox and West Virginia v. B.P.J. But does it matter when noncompliance could bring a DOJ referral or worse? For Penn, the answer was no. For the Virginia Districts, the answer will come soon.
Schools must therefore determine what precedent applies in their jurisdiction, and whether the state (or municipality) in which they are located has anti-discrimination laws prohibiting gender-identity based discrimination. If so, examination of policies and practices around restroom and locker room access is warranted, and stakeholders must be prepared for the possibility that adherence to state law and federal precedent may conflict with current Executive Branch guidance. For schools that have not done so already, designating gender neutral restrooms and other private spaces, and ensuring that staff know where to route student concerns, may be helpful first steps in navigating this tricky terrain.
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