Title IX’s Application to Transgender Athletes: Recent Developments

Title IX’s Application to Transgender Athletes: Recent Developments

Legal Sidebari

Title IX’s Application to Transgender Athletes:
Recent Developments
Updated August 12, 2020
On May 15, 2020, the Department of Education’s (ED’s) Office for Civil Rights (OCR) issued a Letter of
Impending Enforcement Action (Enforcement Letter) to the Connecticut Interscholastic Athletic
Conference (CIAC) and various public school districts within Connecticut. OCR determined that CIAC’s
policy of allowing transgender girls (individuals assigned a male sex at birth but identifying as female) to
compete on female athletic teams discriminates against women in violation of Title IX of the Education
Amendments Act of 1972 (Title IX). Unless the CIAC and school districts come into compliance (such as
through a resolution agreement with the agency), OCR stated that it will either suspend financial
assistance to them or refer the matter to the Department of Justice (DOJ) for judicial proceedings.
This dispute reflects broad disagreement over how Title IX should apply to transgender athletes, an issue
that is also being litigated in the federal courts. Recently, in Bostock v. Clayton County, Georgia, the
Supreme Court held that discrimination against gay and transgender individuals violates Title VII of the
Civil Rights Act, which bars employment discrimination “because of ... sex.” The Bostock case will
inform how courts construe Title IX’s prohibition on sex-based discrimination in education, including
their analyses relating to transgender athletes in particular.
This Legal Sidebar examines OCR’s decision, its statutory context, applicable regulations, case law, and
previous guidance from OCR. It also discusses how Bostock may inform judicial assessment of the status
of transgender athletes under Title IX.
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Background
Transgender students’ participation in athletics has divided students, parents, states, and school districts.
As a matter of federal statutory law, the debate centers on Title IX, which prohibits recipients of federal
financial assistance from discriminating based on sex in education programs (the Equal Protection Clause
of the Constitution may also be relevant, as reviewing courts subject governmental sex-based
discrimination to heightened scrutiny, but those issues are beyond the scope of this Sidebar). Most public
school districts and universities receive federal funds. They must therefore comply with Title IX or risk
losing federal funding if ED finds a violation of Title IX’s requirements. But while the statute explicitly
prohibits discrimination “because of … sex,” it is silent on whether that term includes a person’s asserted
gender identity or otherwise prohibits discrimination against transgender students.
Title IX lacks any requirements specific to athletics. But implementing regulations provide that recipient
schools must not deny the benefits of athletic opportunities based on a person’s sex, or treat members of
one sex differently than another sex in athletics programs. Yet schools may field different teams for each
sex if selection is based on competitive skill or the activity is a contact sport. They must also provide
“equal athletic opportunity” for both sexes; and “effectively accommodate” the interests and abilities of
each sex. The regulations do not mention transgender students.
Shifting Positions at the Department of Education
ED’s OCR has issued a series of nonbinding guidance documents explaining how it interprets Title IX’s
application to transgender students. Over time, OCR has shifted its position about what the statute
requires. During the Obama Administration, OCR and the Department of Justice’s Civil Rights Division
jointly released nonbinding guidance (2016 Guidance) interpreting a student’s gender identity as a
student’s “sex” under Title IX. The guidance notified schools that Title IX prohibits them from treating
transgender students differently from how they treat other students of the same gender identity. The
guidance provided that schools should treat students consistent with their asserted gender identity upon
notification by the student or parents; it also noted that requiring students to produce documents that
reflect their gender identity could itself violate Title IX. ED also released an accompanying document
listing examples of transgender policies that some school districts and athletic associations had adopted to
support transgender students; the 2016 Guidance encouraged schools to consult those examples for
practical advice on complying with Title IX. That document pointed to high school athletic associations
that permit transgender students to compete in athletics consistent with their asserted gender identity.
The Trump Administration rescinded the 2016 Guidance, stating that it did not “contain extensive legal
analysis” or undergo a public comment process. To date, the Administration has not replaced the 2016
Guidance with an alternative. But as explained below, the position OCR has taken in its Enforcement
Letter to the CIAC indicates a shift from the interpretation of Title IX during the Obama Administration.
State Laws and Policies
Alongside these varying federal approaches, states have adopted their own laws and standards for
transgender student athletes. Some state standards stem from enacted laws, others from state-sanctioned
athletic associations that govern sports for schools. Requirements range from laws that prohibit
transgender athletes from participating in sports consistent with their gender identity, to policies that
transgender athletes must be permitted to do so. Falling somewhere in the middle, some states authorize
transgender males (individuals assigned female sex at birth but identifying as males) to participate on
male sports teams, while requiring certain documentation, such as proof of gender transition treatment for
a year, for transgender females to participate on female teams. (This correlates with the current policy of
the National Collegiate Athletic Association (NCAA)).

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Title IX Transgender Claims in the Courts Before Bostock
Federal courts have also weighed in on the status of transgender students under Title IX. While ED
enforces Title IX against schools that receive federal assistance, the statute is also enforceable by private
parties subjected to discrimination who may sue recipients of federal aid in federal court. In this context,
some federal appellate courts have ruled in recent years that transgender students may bring claims under
Title IX where they were denied access to a school bathroom consistent with their gender identity. In most
of those cases, decided prior to the Supreme Court’s ruling in Bostock, courts largely drew from the
Supreme Court’s 1989 decision in Price-Waterhouse v. Hopkins, in which a plurality of the Court ruled
that discriminating against employees based on a failure to conform to stereotypes about their sex is
unlawful discrimination under Title VII. As courts often draw upon Title VII principles to inform Title IX,
some federal courts have reasoned that prohibiting transgender students from using a bathroom that
conforms to their asserted gender identity can punish them for not conforming to stereotypes about the
sex that they were assigned at birth. Even so, while these cases show that (at least in some circuits)
transgender students may prevail under Title IX alleging discrimination, the cases do not necessarily
resolve issues of athletics participation.
That participation is the subject of pending litigation. In response to the developments mentioned above at
the state level, students have challenged laws and policies that regulate transgender athletes’ participation
in sports. For instance, one lawsuit argues that prohibiting transgender students from participating in
athletics consistent with their asserted gender identity discriminates against them based on sex, in
violation of Title IX’s mandate. By contrast, another claims that permitting certain transgender students to
participate according to their stated gender identity discriminates against other student competitors.
Because of inherent biological differences between the sexes, according to this argument, permitting
transgender females to compete on women’s sports teams places the other female participants at a
competitive disadvantage. Under this theory, doing so discriminates against biologically female athletes
because transgender female athletes retain physiological male characteristics that are likely to give them
an unfair competitive advantage. Biological females thus are not afforded equal athletic opportunities as
are men, who are not placed at a similar disadvantage.
Education Department Concludes Connecticut Policy Violates Title IX
It is against this backdrop that OCR issued its Enforcement Letter. The center of the dispute is CIAC’s
policy of permitting transgender students to participate in sports consistent with their gender identity. Of
particular concern for OCR, the policy does not appear to require any medical or other documentation for
a student to participate on a team whose gender identity does not match the gender assigned to the student
at birth. Track and field athletes and their parents filed a complaint to ED arguing that the policy violates
Title IX because it discriminates against girls by permitting “biological” boys to participate in girls’
athletic competitions. OCR investigated and determined that CIAC’s policy (and certain public school
districts who implemented that policy) violated Title IX regulations.
According to OCR, the CIAC policy allows “biologically male” student athletes (“defined by biological
sex”) to compete against female athletes in track and field events, which denies the latter athletic benefits
and opportunities in violation of Title IX’s regulations. This policy denies women the opportunity that
male athletes have to compete “on a level playing field.” The participation of “biologically male” athletes
in these competitions, OCR concluded, prevented female athletes from attaining the benefits of athletic
competition, such as winning championships and obtaining recognition from college recruiters.

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Developing Issues: Applying Bostock
Following these developments, on June 15, 2020, the Supreme Court decided in Bostock that Title VII’s
prohibition of discriminating against employees “because of ... sex” bars employers from firing them for
being gay or transgender. The Court acknowledged that its decision would have application outside of the
employment context, but left that question for development in the lower courts. Because of the similarity
between Title VII’s and Title IX’s prohibitions, courts often look to cases interpreting Title VII to inform
their analysis of Title IX. As discussed above, pre-Bostock, some federal appellate courts had ruled that
transgender students could bring challenges under Title IX against school policies under the gender-
stereotyping theory of Price Waterhouse, though in the context of bathroom and locker room access. After
Bostock, federal courts will be asked to consider the implications of that decision for Title IX. For
instance, in Drew Adams v. School Board of St. John’s County, the Eleventh Circuit Court of Appeals
recently ruled that Bostock’s interpretation of Title VII applies to Title IX’s similar mandate against
discrimination based on sex. The panel concluded that Title IX thus prohibits discrimination based on
transgender status. In that case, the court ruled that a public school board’s policy prohibiting a
transgender boy from accessing the bathroom consistent with his gender identity “singled him out for
different treatment because of his transgender status” and caused him harm in violation of Title IX.
Even if other courts follow the Eleventh Circuit and apply the reasoning of Bostock to Title IX (i.e.,
finding that the statute protects against discrimination against transgender students), however, that alone
does not necessarily resolve the issues connected to transgender students’ participation in sports. Not
every sex-based distinction amounts to discrimination under Title IX. Although the text of the statute
prohibits discrimination because of sex, Title IX permits certain sex-based distinctions, including for
athletic participation. For instance, the statute’s implementing regulations have long authorized separate
athletic teams for each gender in certain situations, as well as separate bathrooms. Title IX’s authorization
for fielding separate athletics teams based on gender presumably reflects general physiological
differences between the sexes. Some might argue that requiring transgender students to participate in
athletics according to the gender they were assigned at birth does not impose a harm or injury amounting
to discrimination under the statute; others that denying transgender athletes the opportunity to compete
consistent with their gender identity singles them out unfairly in a stigmatizing manner.
And as described above, some student athletes claim that permitting certain transgender students to
participate in sports consistent with their gender identity discriminates against them under Title IX. In
particular, they argue that permitting transgender athletes to participate in sports according to their gender
identity denies benefits or “equal athletic opportunit[ies]” to other students. So just as courts have faced
questions about access to bathrooms for transgender students, which can have implications for
nontransgender students, they will now be asked to resolve similar uncertainty in athletics.
Besides questions on Title IX’s substantive protections and prohibitions in the athletics context, there are
also questions regarding the reach of its provisions. While most public school districts and universities are
subject to Title IX because they receive federal financial assistance, the athletic associations that govern
them may not be similarly situated. In OCR’s letter to the CIAC and school districts, OCR claims
jurisdiction over the CIAC because it receives direct federal funds through a grant, receives certain
indirect fees from member schools, and operates as a controlling authority over high school sports in
Connecticut. Not all athletics associations, however, necessarily receive direct federal assistance. For
instance, in National Collegiate Athletics Association v. Smith, the Supreme Court ruled that dues
payments from universities that receive federal financial assistance did not subject the NCAA—which
governs intercollegiate athletics—to Title IX. In other words, simply receiving money from entities that
themselves received federal funds did not constitute financial assistance under Title IX. Likewise, for
Title IX to apply to high school athletic associations, they must be recipients of federal financial
assistance under the statute.

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Considerations for Congress
Title IX does not explicitly address the status of transgender students generally or transgender student
athletes specifically, although Congress could amend Title IX to resolve uncertainty about its application
in these contexts. In addition, because current Title IX regulations on athletics are also silent as to
transgender students, Congress could direct ED to promulgate new regulations that specifically detail
schools’ responsibilities for transgender student athletes.

Author Information

Jared P. Cole

Legislative Attorney

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