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New Title IX Guidance for Transgender Students in 2023

On June 16th, 2021, the United States Department of Education officially confirmed that Title IX of the Education Amendments Act of 1972 protects students from discrimination and harassment on the basis of sexual orientation and gender identity. In a sharp reversal from the policies of Trump Administration, the updated guidance sets forth that transgender students are entitled to Title IX protections.

At Duffy Law, we stand up for the rights of students and employees of educational institutions nationwide. Our legal team wants to make sure that vulnerable students and their families have a full understanding of their rights under federal law. In this article, our Title IX attorneys provide an overview of the Title IX guidance for transgender students in 2021 and current information for 2023.

Title IX: Understanding the Basics

As a starting point, it is important to have a basic understanding of Title IX protections. Signed into law by President Richard Nixon, Title IX of the Education Amendments Act of 1972 is a federal civil rights law that strictly prohibits sex-based discrimination at schools, colleges, universities, and other educational institutions that receive federal funding. As most schools rely in part on federal student loans (and other federal financing) most colleges and universities in the United States are subject to Title IX.

The statute states that no individual shall “be excluded from participation in, be denied the benefits of, or be subjected to discrimination” on the basis of their sex. In recent years, there have been debates regarding what, if any, Title IX protections are available for students based on sexual orientation and gender identity. Consistent with the Supreme Court’s decision in Bostock v. Clayton County, the Department of Education has confirmed that transgender students are protected.

2021 Guidance: A Shift in Policy from Previous Administration

On February 23rd, 2017, then administration of former President Donald Trump rescinded Obama-era Title IX guidelines that had previously extended legal protections to students based on their gender identity. The Biden Administration has reversed policy once again—confirming that transgender and gender non-confirming students are protected against discrimination based on their gender identity under Title IX. In a Notice of Interpretation, the Office for Civil Rights for the  Department of Education clarifying the following:

  1. The federal government will enforce Title IX’s prohibition against sex-based discrimination in a manner that includes discrimination on the basis of sexual orientation.
  2. The federal government will enforce Title IX’s prohibition against sex-based discrimination in a manner that includes discrimination on the basis of gender identity and gender expression.

In other words, the Biden Administration is backing rulings made by several federal courts that confirm that transgender students are protected against discrimination and harassment in federally-funded educational settings. This is an important step for the rights of transgender students. As noted in a recent report from the Office of Civil Rights (OCR), “transgender students are more likely to report feeling unsafe at or going to and from school, and being bullied at school.” The re-affirmed guidance may give new legal tools to students who have face discrimination or other adverse treatment on basis of their gender identity or gender expression.

Key Supreme Court Decision: Bostock v. Clayton County

In issuing the latest Notice of Interpretation, the Office of Civil Rights repeatedly refers to the Supreme Court’s 2020 decision in the case of Bostock v. Clayton County. It is one of the most important LGBTQ+ rights decisions in recent years. A landmark civil rights decision, Bostock centered around the case of a man named Gerald Bostock who was fired by his employer (Clayton County, GA) after he openly expressed interest in joining a gay softball league.

Mr. Bostock filed a claim for employment discrimination. However, initially, his claim was dismissed on the grounds that sexual orientation is not a protected class under Title VII of the Civil Rights Act of 1964. On review, the 6-3 Supreme Court majority reversed the decision, finding that sexual orientation and gender identity are inextricably linked to sex. As Justice Neil Gorsuch wrote for the majority, “sex plays a necessary and undisguisable role” in any adverse treatment based on sexual orientation or transgender status.

Put another way, discrimination on the basis of a person’s gender identity or gender expression is, by definition, a form of sex-based discrimination. The Office of Civil Rights is now confirming that the logic that underpins the Title VII decision in the Bostock case also applies to Title IX. In this guidance, the Department of Education is not creating a “new” right for LGBTQ+ students. Instead, the agency is clarifying the rights that these students have always had and that should have been better protected all along.

What the Updated Guidelines Mean for Transgender/Gender Non-Conforming Students

No person should be denied full and equal educational opportunities based on their gender identity or gender expressions. Schools, colleges, and universities that receive federal funding have a proactive responsibility to prevent sex-based discrimination, including sexual orientation discrimination and gender identity status discrimination. Transgender students are entitled to an educational experience that is free from:

  • Discrimination
  • Harassment
  • Violence

Any student who is mistreated based on their transgender status has a right to take legal action to seek justice and accountability. Title IX is a complicated law. Navigating the legal process can be challenging—especially for students who already have so much on their plate. If you have questions about Title IX protections for transgender and gender non-conforming students, an experienced attorney can help.

How the Guidance Will Impact Recent State Laws that Ban Transgender Athletes

In recent months, several states have moved to ban transgender students from playing sports that correspond with their gender identity. According to a report from CBS News, bills that restrict transgender student’s right to participate in athletics that match their gender identity have been signed into law in nine states:

  • Idaho
  • Alabama
  • Arkansas
  • Mississippi
  • Montana
  • South Dakota
  • West Virginia
  • Florida
  • Tennessee

Other similar legislation has been proposed in nearly two dozen other states. Notably, the first state to pass such a law was Idaho. As explained by the American Civil Liberties Union (ACLU), a federal judge blocked Idaho’s law from taking effect. The judge issued a preliminary injunction on the grounds that the state’s ban on transgender athletes violates the 14th Amendment’s equal protection clause. As of June 30th, 2021, Idaho’s law is on appeal before the Ninth Circuit.

There is a clearly strong tension between the recent guidance from the Department of Education and the flurry of state laws that have been enacted to ban transgender students from playing sports consistent with the gender identity. As U.S. Secretary of Education Miguel Cardona told ESPN at the start of Pride Month, the Biden Administration plans to back transgender students’ “right to compete.” A clash between these states’ laws and the Department of Education is likely. At least one case, perhaps the Idaho’s Fairness in Women’s Sports Act could be headed to the Supreme Court.

2023 Update: States Pass Laws Attempting to Ban Transgender Athletes

As noted previously, several states moved to ban transgender students from playing sports that correspond with their gender identity. Statutes in Idaho, Florida, and Arkansas gained the most notoriety, but over time, lawmakers in other states continued the trend for a variety of different reasons. Some supporters of these bans assert that athletes who transition from male to female retain unfair biological advantages, even with hormone therapy, and that allowing them to compete is a setback for women’s rights and Title IX objectives. Others support the bans on religious or moral grounds.

At this point, 18 states have enacted some type of ban on the participation of transgender athletes. However, the legal challenges to these bans hit the courts almost immediately. Most of the attention focused on the Idaho statute, the “Fairness in Women’s Sports Act.” A federal District Court judge blocked the application of the law, issuing a preliminary injunction on the grounds that the state’s ban on transgender athletes violates the 14th Amendment’s equal protection clause. 

Defendants appealed to the Ninth Circuit, and that court remanded the case to the District Court solely on the issue of whether the case was now moot because there may not be a way to grant relief for the particular plaintiffs in the case. The District Court determined last summer that the case was not moot, and so the spotlight turns once again on the Ninth Circuit as they will need to address the preliminary injunction. In other words, we are still waiting for significant arguments and rulings about the constitutionality of this type of ban.

Conflict Within the Federal Government

When the proposed new Title IX regulations were announced last year, the U.S. Department of Education sidestepped this particular controversy by announcing that they would engage in separate rulemaking on the issue of eligibility to participate in athletics.

In February of this year, federal lawmakers introduced H.R. 734 in the House of Representatives which would amend Title IX to specify that participation in athletics should be “recognized based solely on a person’s reproductive biology and genetics at birth.” The bill passed the U.S. House Education and Workforce Committee in March. While the bill is not expected to make it through the Senate or become law, the support for this type of legislation at the state and federal levels shows the divide on these issues.  

Meanwhile, in April, the Department of Education released a notice of proposed rulemaking regarding eligibility for athletic teams. The proposed rules would affect not only participation in college athletics but also in public K-12 schools, and the Department made a specific point of recognizing the “differences among students and school sports teams depending on grade and education level.”

Under the proposed rule, if a school applied sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team according to their gender identity, that criteria would have to “be substantially related to the achievement of an important educational objective,” and “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” The criteria would have to take into account the type of sport, level of competition, and grade or education level.

With this rule, the Department appears to be trying to strike a balance. They anticipate that elementary school students should be able to participate on school teams based on gender identity while high school and college teams could set criteria that prevent some transgender students from participating on the basis of an objective such as “fairness in competition.” This balancing act could indeed meet some people’s fairness standards, but it will be unacceptable to those who want either an outright ban on transgender athletes or those who want an open invitation for transgender athletes. It will be interesting to review the comments, see how the final rule turns out, and then follow the inevitable judicial challenges to the rules or their application.

Get Help From an Experienced Title IX Lawyer Today

At Duffy Law, our Title IX attorneys are committed to protecting and defending your rights. If you have any specific concerns about the new Title IX guidance for transgender and gender non-conforming students, we are more than happy to help. To learn more about what our law firm can do for you or your student, please call us at (203) 946-2000 or send us a message directly online. Initial consultations are always strictly confidential. With an office in New Haven, we provide national representation in Title IX cases.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.