Update on Title IX and Transgender Athletic Participation
High school education administrators await new Title IX regulations that will update directives relating to transgender athletic participation. In July 2022, plans were announced to initiate a Title IX review process called NPRM (New Proposed Rule Making) on athletic participation.
This review process requires public feedback, essentially a nationwide “public hearing” about 1) Title IX’s statutory text, purpose and regulatory framework; 2) the existing judicial interpretation of Title IX and a review of how the U.S. Constitution has been applied; and 3) existing approaches to sex-related eligibility criteria, including transgender athletic participation, taken by a wide range of states/school districts/other organizations such as athletic associations and sport governing bodies.
The anticipated release of the findings was October/November 2023, but the process has since been continued. Now the anticipated release is estimated to be in the summer of 2024.
In the meantime, and as happens from time to time in the American body-politic at the state level, political culture wars started in 2020. One of the main topics of that war related to transgender athletic participation, resulting in 23 states now having laws that address and limit transgender athletic participation, essentially filling in a gap yet to be filled in by way of Title IX. Until the updated Title IX regulations are provided, the state laws will continue to prevail on this issue.
The following not only provides athletic directors what Title IX is, but also how it applies and why it is so important.
THE U.S. CONSTITUTION
Title IX is a result of the 14th Amendment to the U.S. Constitution. The relevant parts of the 14th Amendment read:
“Section 1 – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (This is the SCOPE/LIMITATION and otherwise known as the “Equal Protection Clause”) (Emphasis mine).
“Section 5 – The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (This requires congressional action via legislation to implement and enforce.) (Emphasis mine).
As Amendment XVI, Section 5, gives the U.S. Congress the authority to pass laws to enforce Section 1, the following is the Title IX text authorized by Section 5: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (34 CFR Part 106)
Additionally, Title IX is enforced by the Office of Civil Rights (OCR).
Under Title IX statutory language, along with the OCR enforcement schemes relative to Title IX, remember the following:
Title IX is not considered a “sports law” – the OCR considers athletics an education program and enforces it as such. (Consider how this implicates transgender athletes.)
Title IX does not only protect females, it protects all students (males and females), faculty and staff.
Title IX covers sexual harassment/sexual assault in schools.
Title IX requires schools to maintain policies, practices and programs that do not discriminate against anyone based on sex. (Consider the current U.S. Supreme Court definition of sex.)
Title IX is at the heart of efforts to create gender equitable schools. Males and females are expected to receive fair and equitable treatment in all arenas of public schooling. (Consider what “gender equity” means in this context.)
The action elements for Title IX compliance and/or enforcement by the OCR are 1) the investigation of discrimination, harassment/ assault, and gender equity complaints; and 2) compliance reviews of policies, practices and programs as adopted by schools/ districts. Additionally, the OCR provides guidance and technical assistance to help avoid issues related to discrimination, harassment/ assault and gender equity.
THE ESSENTIAL CONTROVERSY
Schools or districts impacted by Title IX must make sure that no person can be denied the benefit of or be subjected to discrimination under any education program or activity on the basis of sex. Sex is not defined in the Title IX statute, so state laws are defining sex for purposes of athletic participation.
“Sex” in multiple states is now statutorily defined by the sex designation on the birth certificate, not by gender identity. The overriding question is if “sex” is to be defined under Title IX to include gender identity (as it is defined in Title VII – see below) in those cases where a student’s gender identity is different than their biological gender on the birth certificate, how will the state v. federal conflict be resolved? The short answer is that Title IX trumps state laws.
This legal friction also highlights the controversial elements of transgender sport participation; privacy concerns (restrooms/ locker rooms); competitive advantages and dominance in competition and safety; existing state laws that (on its face) conflict with the “equal protection” clause of Amendment XIV, Title IX and federal regulatory language.
Also, there are emerging voices suggesting that by allowing transgender females to compete based on their gender identity, such a result will erode the gains in fairness and the competitive opportunities heretofore contemplated by Title IX when it was passed in 1972.
TITLE IX AND TITLE VII
Both Title IX and Title VII exist to protect against discrimination, harassment/assault and gender equity complaints. Title IX protects against those in an educational setting receiving federal funds; Title VII applies to employers with 15 or more employees and protects against those in the workplace, public or private. The U.S. Department of Education has said there is no inherent conflict between Title IX and Title VII enforcement schemes.
As previously noted, Title IX does not define “sex.” However, Title VII does now have a definition of “sex.” On June 15, 2020, the United State Supreme Court per Justice Gorsuch decided Bostock v. Clayton County, 590 U.S. _____, 140 S. Ct. 1731 (2020). This dispute was a consolidation of three lawsuits alleging employment discrimination against LGBTQ persons in the workplace, some of whom identified by their gender identity.
Though the United States Supreme Court did not explicitly address legal standards related to such bias under other statutes such as Title IX, the Court did conclude in Bostock that a person’s “sex” is defined by gender identity, not by biological gender, writing “….because employers discriminating against gay or transgender employees accept a certain conduct (e.g., attraction to women) in employees of one sex but not in employees of the other sex…. it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (This may lay a legal foundation for a 14th Amendment “equal protection” claim.)
This language by Justice Gorsuch has given rise to much speculation as to how the U.S. Supreme Court might rule in some future case addressing Title IX discrimination issues. The essential question is, “Why wouldn’t the same individuals be Title IX protected under the same theory – if the definition of “sex” in Title VII includes gender identity, would not be the same definition be applicable to Title IX?”
In June of 2021, after Bostock, the Biden Administration issued an Executive Order directing the Department of Education (DOE) to define “sex” under Title IX consistent with the language in Bostock. The DOE then disseminated supporting guidance in the forms of Interpretation Documents, a Dear Educator Letter, a Fact Sheet and Technical Assistance Document to all affected parties notifying them of the interpretation of sex and how to enforce the new requirements.
A number of states, including Tennessee, objected because the new interpretation conflicted with their current state law. Tennessee claimed that such guidance documents changed Title IX and constituted a “Final Agency Action” which was procedurally and substantively unlawful under the Administrative Procedure Act (APA). The ACA requires a more onerous process, which includes the chance for all interested parties to weigh in via “Public Comments.” Those comments must be reviewed and considered when taking Final Agency Action.
Shortly after the Dear Educator Letter, Fact Sheet and Technical Assistance Document were sent, the State of Tennessee filed an action to enjoin the DOE from implementing the changes. On July 15, 2022, in Tennessee v. U.S. Department of Education, (Case No. 3:21-cv-308), U.S. District Judge Charles Atchley of the Eastern District of Tennessee, issued a temporary block on the new proposed DOE Title IX guidance. Judge Atchley wrote that the public interest is best served when administrative agencies comply with their obligations under the APA. Therefore, a Title IX NPRM review process on athletic participation was initiated by the DOE in July 2022 conforming to the APA. Public comment on this topic was well over 240,000 comments. This is one of the largest number of comments on any prior proposed regulatory change.
TITLE IX AND EQUAL PROTECTION LINK
Before the state laws started changing, most transgender athletes designated themselves by gender identification irrespective of the gender designation on the birth certificate. Now that some states are requiring that all participants for sports identify and participate by what is on the birth certificate, omitting reliance on gender identity, how does the constitutional concept of “equal protection” apply?
A general overview of the emerging state laws that limit transgender athletic participation fall in two general categories:
Females transitioning to males can participate without restriction on either boys or girls teams; and
Males transitioning to females are restricted (or banned) from participating on girls teams.
The law applies to males transitioning to females differently from females transitioning to males. This is clearly contrary to the specific wording of Amendment XIV, Section 1 – “No state shall make or enforce any law which shall…. deny to any person within its jurisdiction the equal protection of the laws.” It was only a matter of time that this type of law would be challenged on an “equal protection” basis.
Though there have been some equal protection cases filed, there has not yet been a final judgment filed in a case. The cases are working through the respective court systems. Typically, it might take a number of these cases to be fully litigated and appealed before the U.S. Supreme Court will decide that the issue is ready for review. Until then, these cases do raise some interesting questions if state law would ultimately prevail:
What is the relief?
Against whom does a plaintiff seek relief?
Is the party seeking relief asking for money damages?
Who pays?
How can anyone find out if the “challenged” athlete is a trans athlete?
Who can challenge?
What can be challenged?
Which “on-ground” administrator is responsible for the eligibility designation?
These “culture war” issues started about locker room and restroom- related privacy concerns. But now the issue of safety of, and fairness in, competition has come up for consideration and review. Simply put, are those issues compelling enough to allow a blanket law?
PREDICTED/ANTICIPATED NEW TITLE IX RULE REQUIREMENTS
There has been some anticipation of what the new Title IX regulations will look like. Will the proposed regulations use the Bostock definition of “sex” that states there cannot be a blanket prohibition of trans competitors due to such a prohibition being too broad and too vague? If so, that means the application of the rule will more likely happen on a case-by-case basis. In practical terms, this would contemplate finding a trans athlete who plays a sport that would negatively impact a trans athlete’s ability to compete, and who would have a clear competitive advantage, who may be difficult to identify.
Schools and districts may be given the ability to adopt their own policies based on grade, sport and level of competition to give opportunities to transgender students while recognizing the need to ensure competitive fairness. For example, schools might, in alignment with their own important educational objectives, allow elementary school students to participate on sports teams consistent with their gender identity while older students, particularly those in high school or college, would be subjected to sex-related criteria that may limit participation.
Whenever announced, the proposed rule, when implemented as final, would supersede any state law that bans transgender athletes from sports. However, the rule will likely be challenged in court.
LEADERSHIP IMPLICATIONS
First, separate this from politics. Understand that this issue is not going to be legislated away. Begin conversations now (especially if in a state with a law limiting participation protections related to gender identity) with legal counsel about how the school or district will reconcile potential conflicts between state law and federal law/regulations.
BE PROACTIVE. Be best friends with the Title IX coordinator!
Athletic directors and Title IX coordinators need to be communicating constantly. Begin stakeholder conversations now to pave an easier path to whatever approach the school and/or district will take once the regulations are in effect. Be prepared to revise policies and procedures substantially to comply with the new regulations. Develop a roll-out plan.
Understand that while the 2020 regulations were very prescriptive, the 2023/24/25 regulations most likely will allow for significant latitude. There is more to discuss with the community about how to comply and what choices will best support the school culture, resources, needs and goals.
And finally, LEAD and PLAN! Understand these circumstances are very difficult on parents and very stressful on families. However, administrators don’t have the luxury to be political – in the end, administrators and school personnel take care of children as they are and provide participation opportunity in a student-safe and secure environment.
Related Stories
