Transgender Students and School Bathroom Policies: Title IX Challenges Divide Appellate Courts

Transgender Students and School Bathroom Policies: Title IX Challenges Divide Appellate Courts

Legal Sidebari

Transgender Students and School Bathroom
Policies: Title IX Challenges Divide Appellate
Courts
April 25, 2023
In the past several years, federal courts have disagreed about whether school policies that prohibit
transgender students from using the school bathroom consistent with their gender identity violate Title IX
of the Education Amendments of 1972 (“Title IX”). Title IX prohibits discrimination on the basis of sex
in education programs or activities that receive federal financial assistance. Transgender students and their
parents have challenged school board policies that prohibit students from accessing the bathrooms
consistent with their gender identities, arguing that such treatment is illegal sex discrimination. The
Courts of Appeals for the Fourth Circuit and Seventh Circuit have ruled that school policies prohibiting
bathroom access consistent with a transgender student’s gender identity can violate Title IX. The full
Eleventh Circuit (sitting en banc) rejected a Title IX challenge to such a policy. (A similar division exists
with respect to whether such policies violate the Constitution’s Equal Protection Clause; another Legal
Sidebar addresses that question.) Other students and parents have brought lawsuits alleging Title IX
violations against school policies that permit transgender students to access the bathrooms consistent with
their gender identities. The Third and Ninth Circuits have ruled against these claims.
Aside from the text of the statute and implementing regulations, at least two legal considerations have
featured prominently in decisions interpreting Title IX in this context. First, in determining whether sex
discrimination under Title IX includes discrimination based on gender identity, courts have looked to
Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964, which bans sex
discrimination (among other things) in employment. Second, because Title IX is generally understood to
rest on Congress’s authority to legislate under the Constitution’s Spending Clause, courts require that
recipients have notice of any obligations that flow from accepting federal funds.
This Legal Sidebar begins with a summary of Title IX’s statutory and regulatory treatment of sex-
segregated facilities, a brief picture of relevant Supreme Court decisions interpreting Title VII, and an
overview of relevant aspects of legislation passed pursuant to Congress’s power under the Spending
Clause. The Sidebar then examines how federal appellate courts have treated Title IX claims brought
against schools regarding bathroom policies that either permit or prohibit transgender students’ use of
facilities aligning with their gender identities.
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Title IX: Background on Separate Facilities
While Title IX prohibits sex discrimination in federally funded education programs, the statute and
implementing regulations contain various exceptions. Relevant here, the statute explicitly allows schools
to maintain separate living facilities “for the different sexes.” The Department of Education’s (ED’s) Title
IX regulations more specifically authorize schools to provide separate restrooms, locker rooms, and
showers on the basis of sex, as long as students enjoy comparable facilities. Thus, as a threshold matter,
schools do not violate Title IX when they distinguish between men and women (or boys and girls) by
operating sex-segregated bathrooms.
Supreme Court: Title VII’s Prohibition Against Sex Discrimination
Courts interpreting Title IX’s prohibition against sex discrimination in federally funded education
programs often draw upon cases interpreting Title VII’s ban against sex discrimination in employment.
Two Supreme Court cases interpreting Title VII have particularly informed Title IX’s application to
transgender students. In the 1989 case Price Waterhouse v. Hopkins, a four-Justice plurality determined
that discriminating against individuals based on a failure to conform to stereotypes about how men or
women should behave is unlawful discrimination under Title VII. In 2020’s Bostock v. Clayton County,
the Court ruled that Title VII’s sex discrimination ban extends to discrimination based on sexual
orientation or gender identity. The Court’s decision assumed, but did not decide, that the term “sex” in
Title VII refers to biological distinctions between females and males. According to the Court, even
proceeding on that assumption, an employer cannot discriminate based on a person’s sexual orientation or
gender identity without considering their sex. Thus, in the Court’s view, because sex is a but-for cause of
sexual-orientation and gender-identity discrimination, such discrimination violates Title VII.
Spending Clause Legislation: Contract and Notice
In addition to Title VII, courts interpreting Title IX also sometimes consider the Spending Clause basis for
that law. The Spending Clause grants Congress the power to spend money to provide for the general
welfare. Congress can also set conditions under which federal funds will be dispersed. Exercising that
power, Congress has enacted a number of laws, including Title IX, that prohibit recipients of federal
funding from discriminating on certain bases.
The Supreme Court has characterized legislation enacted under the Spending Clause as contractual in
nature—in exchange for funds, recipients agree to follow federal obligations. The Court has explained
that the “‘legitimacy of Congress’ power’ to enact Spending Clause legislation rests” on whether
recipients “voluntarily and knowingly” agree to the contract’s terms. For Congress to impose conditions
on federal funding, requirements must be “clear” and “unambiguous[]” so that recipients have “notice” of
their obligations.
Appellate Courts Consider Bathroom Policies Denying Access Consistent
With Gender Identity
Title IX challenges brought by transgender students to school bathroom policies that prohibit them from
using facilities consistent with their gender identities have divided federal appellate courts.
Seventh and Fourth Circuits: Such Policies Can Violate Title IX
In a 2017 case (prior to the Supreme Court’s Bostock decision), the Seventh Circuit ruled that a
transgender boy could bring a Title IX suit against a school district policy that barred him from accessing
the boys’ bathroom under the sex-stereotyping theory of Price Waterhouse. According to the panel, “[b]y

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definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she
was assigned at birth.” The panel reasoned that requiring an individual to use a bathroom that does not
conform to their gender identity “punishes that individual for his or her gender non-conformance, which
in turn violates Title IX.” The policy also treats transgender students differently than those students who
are not transgender, according to the court. The court took care to indicate that the school district’s
position that the student could not “unilaterally assert” his gender mischaracterized the student’s claims
and dismissed his transgender status, as the student had a medically diagnosed and documented condition
and had lived in accordance with his gender identity since that diagnosis.
A divided Fourth Circuit panel reached a similar result in a 2020 case that followed Bostock. The policy at
issue in that case limited the use of bathrooms “to the corresponding biological genders,” which
apparently would be determined by the sex indicated on a student’s birth certificate. The Fourth Circuit
indicated that Bostock’s interpretation of Title VII guided the court’s analysis of Title IX. Under the
reasoning of that decision, application of the school board’s policy to the transgender student
discriminated against him on the basis of sex, according to the Fourth Circuit. The court reasoned that the
school board could not bar the student from the boys’ bathroom without consideration of his “biological
gender” (defined under the policy as the sex marker on the student’s birth certificate), rendering sex a but-
for cause of the board’s action. The panel majority also ruled that the policy harmed the transgender
student in the case. The alternative gender-neutral restrooms made available were far from his classes,
causing him to be tardy and miss more class time than others. At after-school events, the student “had to
be driven away” to find a bathroom. Further, the court held, the stigma of being forced to use separate
restrooms was sufficient in itself to constitute harm.
Having determined that sex was a but-for cause of the school board’s action that harmed the student, the
panel majority concluded that the policy unlawfully discriminated against him. According to the court, the
student was treated worse than similarly situated students, as he was not allowed to use the bathroom
“corresponding with his gender.” Unlike other boys at school, he was only allowed to use the girls’
bathroom or a single-stall option. Finally, the Fourth Circuit rejected the argument that the Title IX
regulations authorizing sex-separated facilities justified the policy. For the court, those regulations
indicated that sex-segregated facilities in and of themselves are not discriminatory, but they did not
authorize the school board to “rely on its own discriminatory notions of what ‘sex’ means” in applying
policies to transgender students.
The Fourth Circuit’s decision drew a dissent. The dissent determined that “sex” under Title IX refers to
“traditional biological indicators” rather than gender identity. It continued that the statute and regulations
allow for separate living accommodations and bathrooms because of the important privacy interests
individuals have when using those facilities, interests only heightened when persons of the opposite
biological sex are present. The dissent took the position that requiring the school to allow “a biological
female who identifies as male” to use the male restroom would contradict the separation explicitly
allowed by Title IX. The dissent also rejected the majority’s conclusion that the school board applied a
discriminatory reading of what “sex” means, arguing that the board relied on the commonly accepted
definition referring to anatomical and physiological differences between males and females.
Eleventh Circuit: Such Policies Do Not Violate Title IX
In 2022, the en banc Eleventh Circuit, in an opinion by Judge Lagoa, ruled that separating school
bathrooms based on “biological sex” does not violate Title IX. The court first observed that the school
board bathroom policy at issue separated male and female students and distinguished between them on
the basis of biological sex, determined by reference to documents such as birth certificates submitted
when enrolling in the district. The board did not accept updated documents conforming to a student’s
gender identity, although sex neutral bathrooms were available to students.

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The Eleventh Circuit indicated that, unlike Title VII, Title IX contains express statutory and regulatory
carve-outs permitting sex-segregated facilities. Because of this distinction, the majority opinion reasoned
that it was not enough for the court to decide whether discrimination based on transgender status
constitutes sex discrimination (as the Bostock Court did under Title VII). Instead, the court framed the
applicable question as whether the regulatory provision authorizing separate bathroom facilities on the
basis of sex “means to provide separate bathrooms on the basis of biological sex.” The court concluded
that Title IX prohibits discrimination based on “biological sex,” and its implementing regulations
authorize bathrooms separated on that same basis. The court ruled that because the school board policy
separated bathrooms along those lines, it complied with Title IX.
The Eleventh Circuit also ruled that even if the meaning of “sex” was ambiguous, the student’s claim still
failed. The court reasoned that because Spending Clause legislation must provide a clear statement for
states when imposing a funding condition, the school board’s understanding that the regulation allowing
separate bathrooms meant division according to biological sex could violate Title IX only if “sex”
unambiguously meant something other than “biological sex”; in that case, the school board would have
notice that its interpretation was wrong. The court concluded that, because schools around the country
separate bathrooms based on biological sex, it was “untenable” to argue that the school board was on
notice that its policy violated Title IX.
The en banc decision drew a number of dissents. Judge Jill Pryor, for instance, criticized the majority’s
definition of “biological sex.” Pointing to evidence in the record, her dissent asserted that “biological sex”
includes gender identity, and that “birth-assigned sex and chromosomal structure take a back seat in
determining a person’s sex when that person’s gender identity diverges from those two components.”
Thus, in Judge Pryor’s view, a person can be male if “some biological components of sex, including
gender identity, align with maleness, even if other biological components . . . align with femaleness.”
Judge Pryor’s dissent concluded that the policy was discriminatory because other students were allowed
to use the bathroom consistent with their gender identity, while transgender students were not. The
student in the case was excluded from the boys’ bathroom because of his genital anatomy. Under the
reasoning of Bostock, her dissent reasoned, sex was accordingly a but-for cause of his discriminatory
exclusion from the bathroom.
Judge Pryor’s dissent also disagreed with the majority’s conclusion that Title IX’s carve-outs for separate
bathrooms foreclosed the claim, arguing that the carve-outs do not address situations where a student’s
biological markers of sex diverge. Pointing to the Fourth Circuit’s ruling on the point, she argued that
Title IX’s carve-outs do not allow schools to rely on their “own discriminatory notions of what sex
means.” The transgender student in the case had biological markers of sex indicating that he was female
and indicating he was male, yet the policy categorically assigned students to bathrooms based on only one
such marker—a person’s sex assigned at birth. Judge Pryor’s dissent argued that Title IX’s carve-outs did
not foreclose a claim that this practice was discriminatory.
Appellate Courts Consider Policies Permitting Bathroom Access
Consistent With Gender Identity
Other cases have considered school policies that allow transgender students to use the school facilities
that match their gender identity. The two appellate courts that have heard these cases agreed that such
policies do not constitute sex-based harassment under Title IX, which includes “unwelcome conduct
determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively
denies a person equal access” to education.
The Ninth Circuit found no Title IX violation when reviewing a challenge to a school district’s “Student
Safety Plan” that allowed transgender students to use bathrooms and locker rooms matching their gender
identity. The plaintiffs, parents of students in the district, alleged that this policy constituted harassment of

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their children, as they allegedly experienced “embarrassment, humiliation, anxiety, intimidation, fear,
apprehension, and stress” in sharing a locker room and bathroom with a transgender peer. The court
reasoned that the policy was not intended to harass cisgender students, nor did it treat any individual
student differently on the basis of sex because it allowed all students to use facilities matching their
gender identity. Thus, the court held that the policy was not “discriminatory or motivated by any gender
animus,” nor was any alleged harm so “severe, pervasive, and objectively offensive to rise to the level of
a Title IX violation.” Because the alleged harm was simply being in the presence of a transgender student,
the court held that there was no harassment, and thus no Title IX claim.
The Third Circuit came to the same conclusion in a similar case, holding that a school policy allowing
students to use bathrooms in accordance with their gender identity was not sex discrimination because all
students were treated equally. The court held that the plaintiffs, a group of cisgender students, had not
sufficiently established that allowing transgender people to use bathrooms in accordance with their gender
identities could constitute harassment toward other bathroom users. To the contrary, the court found “very
persuasive” the Seventh Circuit’s view that “barring transgender students from using privacy facilities
that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping
theory in violation of Title IX.”
Considerations for Congress
Amidst these varying judicial interpretations of Title IX, the Department of Education has issued a Notice
of Proposed Rulemaking to amend the agency’s Title IX regulations. As explained more fully in a
previous Sidebar, if adopted, those regulations would define the scope of Title IX’s prohibition against
sex discrimination to include discrimination based on sexual orientation and gender identity.
While courts and agencies must interpret the current statutory text of Title IX, Congress could amend the
statute to resolve disagreements. One option might be to address the statutory provision authorizing
separate living facilities, which could avoid implicating other questions about Title IX’s scope (such as
student athletes participating on teams that align with their gender identity rather than biological sex, an
issue that is not discussed in this Sidebar). Congress could also choose to address other potential
applications of Title IX to transgender students beyond the bathroom context. More broadly, Congress
could provide a definition of what it means to discriminate “on the basis of sex” under Title IX. Congress
could also opt to allow the judicial branch to determine the meaning of the current statutory text via
rulings in response to litigation.

Author Information

Jared P. Cole
Madeline W. Donley
Legislative Attorney
Legislative Attorney

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