When Congress enacted Title IX in 1972, it did not intend to give the president or executive agencies a blank check to write dramatically new social policy.
That, however, is precisely what the administration is doing today by announcing that it has reinterpreted that statute to require schools to create new policies on restroom use, so as to accommodate those who would like to use the restroom of the opposite sex.
The administration’s position goes beyond its legal authority. Only Congress can make so fundamental a change in the law. On issues of this magnitude, which implicate issues of the rule of law, safety, privacy, self-government, federalism, and more, the process is critical. The president cannot legislate with a stroke of a pen. Something this important cannot be a matter of bureaucratic fiat.
Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them on to President Richard Nixon for his signature. The heart of that law is Title IX:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.
The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”
In January 2015, OCR issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified gender of students. This letter informed an unnamed school official (the information is redacted in the available copy):
The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.
The letter referenced two OCR investigations that resulted in out-of-court resolutions.
The first involved Arcadia School District in California. There, OCR investigated complaints of discrimination against transgender students, specifically that “the District prohibited the Student from using sex-specific restroom and locker room facilities designated for boys during his sixth and seventh grade years.” The agreement between OCR and the District required the District to hire a consultant, create a support team at the parents’ request, and
- provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
- provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
- treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
- ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.
At the district level, the school agreed to implement new discrimination policies to “specifically include gender-based discrimination as a form of discrimination based on sex, and b. state that gender-based discrimination includes discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity,” revise policies to “to ensure that all students, including gender nonconforming and transgender students, are provided with equal access to all such programs and activities,” provide training to employees on transgender issues and provide reports to OCR.
The second resolution involved a complaint against Downey School District, also in California, and alleged more general harassment of a male student who now identified as female. The resolution agreement requires the district to “continue to treat the Student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.” The district was required to enact the same kinds of policies required of Arcadia.
In June 2015, the Department of Justice filed a “Statement of Interest” in a federal case in Virginia which argues the OCR position as the appropriate interpretation of the requirements of Title IX: “The term ‘sex’ as it is used in Title IX is broad and encompasses gender identity, including transgender status.” The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”
The district court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation that says schools may segregate based on sex, which this court said must include biological sex. The ACLU has appealed.
In another case, in Palatine, Illinois, a boy who identifies as a girl sought access to the girls locker room rather than the private facilities offered by the school. The student filed a complaint with the Department of Education with ACLU help, and OCR told the school it needed to allow the student to use the girls locker room.
These cases are having an impact on other schools’ policies. In Hillsboro, Missouri, despite a student walkout opposing the policy, the high school allowed a male student who identifies as female to use women’s facilities. A news report explains:
Districts that refuse to allow students to use a bathroom for the gender with which they identify could run afoul of the U.S. Department of Education’s Office of Civil Rights, said Kelli Hopkins of the Missouri School Boards’ Association.
“The Office of Civil Rights has issued an opinion that says, if you do this, you have engaged in gender discrimination,” Hopkins said. “At the same time, there is no case law or statute in Missouri that says this is against the law.”
Schools found to have violated a student’s civil rights are at risk of losing some of their federal funding, Hopkins said.
Fairfax County, Virginia, also implemented a policy adding “gender identity” to the district’s discrimination policy after being told OCR could terminate federal funding if it did not.
In December 2015, a federal court in California denied Pepperdine University’s motion to dismiss a lawsuit alleging the university’s basketball team discriminated against two lesbian players. The court concluded, “[S]exual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.” The court cited the EEOC guidance on Title VII as support for this conclusion.
Most recently, activist groups have set their sights on religious schools that have sought an exemption from these interpretations of Title IX. Title IX has long allowed schools to request an exemption from the statute if “application of the law would conflict with specific tenets of the religion” so as not to lose federal funding and open themselves to private lawsuits. The exemption will be granted as long as a school can show it is controlled by a religious organization and it identifies which applications of the law conflict with its religious teachings. At the urging of the Human Rights Campaign and others, the Department of Education announced earlier this year that it would “create a searchable database that reveals the names of colleges and universities that have received exemptions on religious grounds from federal civil rights protections.”
Now, on May 13, 2016, the Department of Education and the Department of Justice issued another letter reiterating its claim that Title IX “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” In fact, the letter brazenly asserts that it is not adding “requirements to applicable law.” The letter also specifically invokes the possibility that schools may lose federal funds if they are not in compliance.
Some excerpts from the letter illustrate how remarkably broad and novel the administration’s requirements are:
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.
The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.
Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.
The provision getting the most attention relates to the use of locker rooms and restrooms and specifically precludes a solution where schools provide single-user facilities to a student to assuage privacy and safety concerns:
A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
On a subject of this importance, process matters. A massive shift in the meaning of federal law is not something to be done by a bureaucratic agency at the stroke of a pen.
 U.S. Department of Education Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence” April 29, 2014, pp. 5-6, at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
 U.S. Department of Education Office for Civil Rights, Letter, January 7, 2015, at https://www.justice.gov/sites/default/files/crt/legacy/2015/07/09/gloucestersoi.pdf (Exhibit B).
 OCR Case No. 09-12-1020 (July 24, 2013), at https://www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadialetter.pdf.
 Resolution Agreement Between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, OCR Case Number 09-12-1020, July 24, 2013 at https://www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadiaagree.pdf.
 OCR Case No. 09-12-1095 (October 14, 2014), at http://www2.ed.gov/documents/press-releases/downey-school-district-letter.pdf.
 Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095 (October 14, 2014), at http://www2.ed.gov/documents/press-releases/downey-school-district-agreement.pdf.
 Grimm v. Gloucester County School Board, Statement of Interest of the United States, Civil No. 4:15cv54 (June 29, 2015).
 ACLU, “G.G. v. Gloucester County School Board,” November 23, 2015 at https://www.aclu.org/cases/gg-v-gloucester-county-school-board.
 G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (Eastern Dist. Va. 2015) at https://www.aclu.org/legal-document/gg-v-gloucester-county-school-board-opinion.
 G.G. v. Gloucester County School Board, Brief of Plaintiff-Appellant, No. 15-2056 (4th Cir. October 21, 2015) at https://www.aclu.org/legal-document/gg-v-gloucester-county-school-board-plaintiff-appellants-brief.
 Duaa Eldeib & Robert McCoppin, “Feds Reject School District’s Plan for Transgender Student, Locker Room” Chicago Tribune, October 21, 2015, at http://www.chicagotribune.com/news/local/breaking/ct-transgender-student-locker-room-palatine-met-20151012-story.html.
 Doug Moore, “Hillsboro High Students Walk Out Over Transgender Dispute,” St. Louis Post-Dispatch, September 1, 2015, at http://www.stltoday.com/news/local/education/hillsboro-high-students-walk-out-over-transgender-dispute/article_be488fab-d239-5944-9733-32f569dcdc32.html.
 Lauretta Brown, “Feds Forcing Schools to Adopt ‘Nondiscrimination’ for Transgender Teachers and Students,” CNS News, May 7, 2015, at http://cnsnews.com/news/article/lauretta-brown/feds-forcing-public-schools-adopt-nondiscrimination-transgender-teachers.
 Videckis v. Pepperdine University, Case No. CV-15-00298, (C.D. Cal. 2015) at https://scholar.google.com/scholar_case?case=17457110398961965746&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
 Liam Stack, “Government to Reveal Colleges With Title IX Waivers,” New York Times, January 21, 2016, at http://www.nytimes.com/2016/01/22/us/government-to-reveal-colleges-with-title-ix-waivers.html.
 U.S. Department of Education & U.S. Department of Justice, “Dear Colleague Letter on Transgender Students,” May 13, 2016, at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.