Title IX: Who Determines the Legal Meaning of “Sex”?

Title IX: Who Determines the Legal Meaning of “Sex”?

Legal Sidebar

Title IX: Who Determines the Legal Meaning
of “Sex”?
December 12, 2018
Title IX of the Education Amendments of 1972 (Title IX) generally prohibits discrimination “on the basis
of sex” in educational programs or activities that receive federal funding. Whether the statute’s protection
extends to bar discrimination based on a person’s gender identity (i.e., according to a person’s internal
sense of gender), however, is unsettled. Federal agencies have taken shifting positions on the question in
recent administrations, and federal courts have reached divergent decisions on the matter. In addition,
recent news reports have claimed that an internal Department of Health and Human Services (HHS)
memorandum, not publicly available, advocates for interpreting the term “sex” in Title IX to refer to a
person’s biological status at birth, but not a person’s gender identity. Though not the primary agency
responsible for enforcing Title IX, HHS administers the Patient Protection and Affordable Care Act
(ACA), which bars discrimination in health programs that receive federal funding on the grounds
prohibited by Title IX. Reports about a potential HHS memo invited some speculation that other agencies
could “follow suit” and “effectively end federal recognition” of transgender status.
More broadly, another federal civil rights statute, Title VII of the Civil Rights Act of 1964 (Title VII), bars
discrimination on the basis of sex in the employment context; interpretation of its provision relating to sex
discrimination often informs the interpretation of Title IX’s prohibitions. The Supreme Court has been
asked to resolve and address competing interpretations of Title VII’s prohibition of discrimination
because of “sex.” Accordingly, a definitive ruling on that statute’s scope would likely inform judicial
interpretation of the similarly worded prohibition against “sex” discrimination in Title IX.
Against this backdrop, this Sidebar provides an overview of the principal federal agencies involved in
interpreting and enforcing Title IX, the various interpretations of the term “sex” in Title IX reached by
those agencies and federal courts, and the potential interplay among conflicting interpretations of a
statutory term between courts and federal agencies.
Federal Agencies’ Role Enforcing and Implementing Title IX
Title IX generally prohibits discrimination “on the basis of sex” against any “person in the United States”
in “any education program or activity receiving Federal financial assistance.” Thus, educational
institutions that receive federal funding, as well as non-educational institutions that conduct educational
programs, are prohibited from discriminating based on sex in their academic offerings, scholarships,
athletic opportunities, and other matters. Title IX protections are generally enforced in two ways. First,
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individuals may directly sue an educational institution that receives federal funding for violating Title IX.
Second, federal agencies that provide funding to educational programs—by grant or loan, for example—
can issue Title IX rules and regulations, monitor recipients’ compliance with Title IX, and, under certain
circumstances, cut funding if a recipient violates Title IX.
The Department of Justice (DOJ) and the Department of Education (ED) play primary roles overseeing
implementation and enforcement of Title IX. The Attorney General, under Executive Order 12250,
coordinates implementation and enforcement of Title IX across executive agencies. Indeed, all executive
agency guidance and regulations on Title IX are subject to the Attorney General’s approval. The
Education Amendments of 1974 direct the Secretary of Education to promulgate regulations restricting
sex discrimination at federally assisted education programs. The Attorney General and Secretary of
Education delegated many of their Title IX responsibilities to DOJ’s Civil Rights Division (CRD) and
ED’s Office of Civil Rights (OCR), respectively. Given their overlapping duties, the two agency
components collaborate in enforcing Title IX per a memorandum of understanding.
ED’s Title IX regulations served as the model for a common Title IX rule issued in 2000 by 20 executive
agencies, including DOJ. The common rule largely mirrored ED regulations and acknowledged ED’s
unique role interpreting and enforcing Title IX. Notably, however, neither ED’s regulations nor the
common rule specify whether Title IX’s use of the term “sex” should be strictly understood to refer to a
biological characteristic or also encapsulates a person’s identified gender.
Though ED and DOJ play leading roles interpreting and enforcing Title IX, other agencies administer
statutes that may reference Title IX. As noted above, the HHS-administered ACA, for example, prohibits
discrimination in any health program receiving federal funds on grounds listed in several civil rights
statutes, including Title IX. When HHS issued regulations in 2016 to implement this requirement, the
agency construed ACA’s anti-discrimination prohibitions relating to “sex” as covering discrimination
based on a person’s self-defined gender identity. However, these regulations (along with those forbidding
discrimination based on “termination of a pregnancy”) were enjoined pending a final judicial ruling by a
federal district court on a number of grounds, including that the HHS likely exceeded its authority under
ACA. On the other hand, several other federal district courts have taking a different view of ACA’s
protections, interpreting the statute’s Title IX-incorporating language as covering gender identity
discrimination.
In sum, ED and DOJ play the leading administrative roles in overseeing implementation and enforcement
of Title IX across federal agencies, and agencies have generally adopted uniform interpretations of Title
IX that adhere to ED and DOJ guidance. However, individual agencies may need to assess how these
rules apply to matters falling under their specific jurisdiction, including when an agency administers a
statute that specifically incorporates Title IX’s anti-discrimination prohibition outside of the education
context.
Agency Interpretations of Whether Title IX Compels Treatment Consistent with Gender Identity
Executive agencies in the two most recent administrations seem to have reached different conclusions on
whether Title IX addresses the treatment of persons in conformity with their gender identity. In the latter
years of the Obama Administration, ED and DOJ issued guidance construing Title IX-implementing
regulations as restricting educational institutions or programs receiving federal funding from treating
persons inconsistently with their gender identity. In 2015, for example, ED’s OCR issued a letter
regarding transgender students’ access to school restrooms. The letter noted that schools may, consistent
with ED’s Title IX regulations, provide sex-segregated facilities, such as restrooms, locker rooms, and
showers. But when schools opt to make sex-based distinctions in such circumstances (e.g., providing
different facilities for male and female students), the letter explained, schools “generally must treat
transgender students consistent with their gender identity.” The letter also pointed to two investigations by
ED’s OCR and DOJ’s CRD of gender identity discrimination complaints against local school districts.

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Both led to resolution agreements in which the districts agreed to ensure that transgender students would
be treated consistent with their gender identity for restroom access purposes. Similarly, in 2016, OCR and
CRD jointly issued a “Dear Colleague” Letter (DCL) which instructed schools to “treat a student’s gender
identity as the student’s sex for purposes of Title IX.” According to the DCL, this “means that a school
must not treat a transgender student differently from the way it treats other students of the same gender
identity.” The DCL advised that requiring transgender students to produce documentation proving their
asserted gender identity itself “may violate Title IX.”
Litigation followed these agency actions. The U.S. Court of Appeals for the Fourth Circuit (Fourth
Circuit) in G.G. ex rel. Grimm v. Gloucester County School Board deferred to the 2015 ED guidance as an
authoritative interpretation of ED’s Title IX regulations when considering a transgender student’s
challenge to the lawfulness of a school district policy that prevented the student from using the boys’
bathroom. The Supreme Court granted certiorari to review the case in late 2016. Just before the High
Court granted review in that case, a federal district court in Texas v. United States preliminarily enjoined
enforcement of the 2016 DCL, concluding that it was a “legislative rule” that should have undergone the
notice and comment procedures of agency rulemaking required by the Administrative Procedure Act. The
court further concluded that the DCL conflicted with the text of Title IX and ED’s regulation authorizing
schools to provide separate restrooms for students based on sex.
But the possibility of a definitive judicial ruling on the propriety of the 2015 ED letter and the 2016 DCL
seemed foreclosed when, in early 2017, the Trump Administration rescinded those documents. In so
doing, ED and DOJ emphasized legal challenges to those earlier actions, and opined that the earlier,
Obama Administration-era letters did not “contain extensive legal analysis or explain how the[ir] position
is consistent with the express language of Title IX, nor did they undergo any formal public process.” The
rescission also stated that the withdrawal of these documents did not leave transgender students “without
protections from discrimination, bullying, or harassment,” and that “schools must ensure that all students,
including LGBT students, are able to learn and thrive in a safe environment.” Following the rescissions,
the Supreme Court vacated the Gloucester County decision and remanded the case for further proceedings
(litigation in that case continues). The federal district court in Texas dissolved the preliminary injunction
against the 2016 DCL after plaintiffs voluntarily dismissed their action.
Since the rescission of the Obama Administration-era documents, ED and DOJ have not issued a new
guidance document or regulation addressing whether Title IX bars discrimination on the basis of gender
identity. However, in October 2017, then-Attorney General Jeff Sessions issued a memorandum
conveying DOJ’s position that Title VII’s prohibition on discrimination in the workplace based on sex
does not address discrimination on the basis of “gender identity per se, including transgender status.”
Recent Appellate Court Decisions Interpreting “Sex” in Title IX
Some federal courts have also reached the issue of whether Title IX prohibits discrimination based on
gender identity or transgender status without relying on guidance from federal agencies. Instead, these
courts turned to judicial precedent from the Supreme Court, their own circuit, and other circuits. Though
this case law continues to develop, several federal appellate courts have recently held or suggested that
Title IX protects against discrimination based on gender identity, including transgender status, in light of
the Supreme Court’s 1989 Price-Waterhouse v. Hopkins decision which recognized “sex-stereotyping” as
a method of proving sex discrimination under Title VII. As a general matter, a claim brought under a “sex-
stereotyping” theory asserts that when an entity discriminates against an individual based on a failure to
conform to stereotypes associated with the individual’s biological sex, such conduct is unlawful sex
discrimination.
In its 2017 decision in Whitaker by Whitaker v. Kenosha Unified School District No. 1 Board of
Education, for example, the Seventh Circuit recognized the viability of a Title IX claim raised by a
transgender high school student who challenged the school district’s policy on bathroom access. The

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plaintiff, who was born biologically female and was diagnosed with gender dysphoria, publicly presented
as male, and had begun hormone replacement therapy before seeking permission to use the boys’
restroom, which the school denied. The parties in the case disputed whether, under Title IX, the plaintiff’s
claim constituted a claim of sex discrimination. The circuit panel, observing that neither Title IX nor
implementing regulations define the term “sex,” looked to Price-Waterhouse, as well as the circuit court’s
own en banc decision holding that Title VII’s bar against sex-based discrimination includes
discrimination based on sexual orientation. The Whitaker panel held that because a transgender student
does not conform to stereotypes of the sex that he or she was at birth, the student asserts a cognizable
Title IX claim when alleging that the discrimination was based on a failure to conform to sex stereotypes.
The panel concluded the plaintiff was likely to succeed on his Title IX claim, and upheld the preliminary
injunction enjoining the school district from denying him access to the boys’ restroom. A petition for
certiorari in the case was denied by the Supreme Court in 2018.
The Sixth Circuit expressed a similar interpretation of Title IX in its 2016 decision in Dodds v. United
States Department of Education, though the issue arose in a different posture. There, a school district
appealed a district court’s preliminary injunction ordering the school district to permit a transgender girl
to use the girls’ restroom. In denying the school district’s motion for a stay of that injunction, the court of
appeals pointed to “settled law” in the Sixth Circuit that sex-stereotyping based on a person’s gender non-
conforming behavior is unlawful sex discrimination. Relatedly, and more recently, the Sixth Circuit has
held that Title VII prohibits discrimination based on transgender or transitioning status, not only based on
a theory of sex-stereotyping, but also because such discrimination in the court’s view necessarily
considers the individual’s biological sex. A petition for certiorari in that case—EEOC v. R.G. & G.R.
Harris Funeral Homes, Inc.—is pending before the Supreme Court.
Meanwhile, the Third Circuit, in a 2018 decision Doe by and through Doe v. Boyertown Area School
District, addressed a challenge raised by non-transgender students asserting, among other claims, that a
school district infringed on their Title IX rights by permitting transgender students to use bathrooms and
locker rooms according to those students’ gender identity. There, the school district had adopted a policy
of individualized review of such requests and granted them on a case-by-case basis. The Third Circuit
affirmed a district court’s denial of a preliminary injunction sought by plaintiffs to prevent the school
district from continuing this policy. The circuit court held that the plaintiffs’ Title IX claim—whether
construed to assert disparate treatment based on sex or “hostile environment harassment”—failed for lack
of evidence that the policy discriminated based on sex or that any transgender students had harassed non-
transgender students. The Third Circuit additionally suggested, however, that barring transgender students
from restrooms that align with their gender identity “would itself pose a potential Title IX violation.” That
and similar observations in the decision elicited a dissenting opinion by several judges to the Third
Circuit’s denial of rehearing en banc of the case. The dissenting judges, who would have granted
rehearing en banc, contended that such dicta in the panel’s decision went beyond what was necessary to
decide the case, was open to debate, and that the panel’s revised decision (reissued after granting panel,
not en banc, rehearing) “still wrongly suggests that our Court has reached decisions that it has not.”
As noted above, several petitions are pending before the Supreme Court concerning cases addressing the
meaning of “sex” under Title VII. A Supreme Court decision addressing the meaning of “sex” in Title VII
potentially could affect future interpretation of Title IX given the similarities between the statutes.
Ambiguity and Agency Discretion
Courts have not definitely resolved whether Title IX bars discrimination based on a person’s gender
identity, with some noting that the statute is ambiguous on the matter. As of the date of this Sidebar, the
OCR and CRD have not issued new guidance or regulations resolving the question for administrative
purposes. To the extent that a reviewing court finds a statutory term ambiguous, administrative agencies
may have some discretion in deciding whether the term covers discrimination based on gender identity.
Traditional administrative law principles would suggest that, if a reviewing court found the scope of Title

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IX to be ambiguous, an agency regulation interpreting the statute might receive deference if Congress
gave that agency the authority to speak with the force of law. Further, an agency may be afforded
deference in its reasonable interpretation of regulations giving effect to ambiguous statutory language.
Indeed, courts repeatedly have deferred to ED’s interpretation of numerous provisions of Title IX, along
with the agency’s interpretation of Title IX-implementing regulations.
If a reviewing court considers it unclear whether Title IX’s prohibition of discrimination “on the basis of
sex” extends to gender identity, an administering agency potentially could change its view of whether the
statute covers such activity, so long as the alternative interpretation is also a reasonable construction of
the statutory mandate. Further, according to Supreme Court precedent, when a court is asked to interpret
an ambiguous statute and faces a conflict between an interpretation taken in prior cases and that
forwarded by an agency in a subsequent regulation, the court might defer to the agency’s interpretation, if
it concludes Congress delegated the agency with authority to speak with the force of law on the statute’s
meaning. As a result, if the statutory scope of Title IX’s prohibition on sex discrimination is ambiguous,
agencies may have some degree of discretion to decide whether or not this prohibition requires persons to
be treated consistently with their gender identity.
Congress’s Role
As in all matters of federal statutory interpretation, Congress ultimately can resolve any ambiguities by
amending the statute or providing for additional legal protections. For example, at least one bill
introduced in the 115th Congress would bar gender identity-based discrimination against students in any
program or activity receiving federal financial assistance. Likewise, Congress could also amend Title IX
to either expressly include or exclude gender identity or otherwise define “sex” with greater specificity. In
addition, Congress could, among other legislative options, alter the administration of Title IX by a
particular agency or agencies.

Author Information

Jared P. Cole
Christine J. Back
Legislative Attorney
Legislative Attorney

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