Education Department Finalizes New Title IX Regulations: Sexual Orientation and Gender Identity

Legal Sidebari

Education Department Finalizes New Title IX
Regulations: Sexual Orientation and Gender
Identity
June 5, 2024
Title IX of the Education Amendments of 1972 (Title IX) prohibits sex discrimination in education
programs that receive federal financial assistance. In updated regulations, the Department of Education
(ED) has defined the scope of sex discrimination under Title IX to include sexual orientation and gender
identity discrimination. The regulations also contain a provision specifying that, absent an exception, even
in situations where differential treatment or separation based on sex is otherwise permitted, policies that
prevent individuals from participating in education programs consistent with their gender identity violate
Title IX. The regulations cover all education programs that ED funds, including all K–12 public school
districts and most colleges and universities. The regulations go into effect August 1, 2024. Various states
have already challenged them in court.
ED’s interpretation of Title IX’s sex discrimination ban follows a Supreme Court decision from 2020,
Bostock v. Clayton County, that interpreted a different statutory prohibition against sex discrimination in
the workplace, Title VII of the Civil Rights Act of 1964 (Title VII). ED’s updated regulations draw on the
reasoning of this decision in determining the scope of Title IX’s bar against sex discrimination. To place
the regulations in context, this Sidebar begins with a brief introduction to Title IX and its relevant
exceptions, followed by an overview of Bostock and lower courts’ interpretation of Title IX following that
decision. This Sidebar then discusses the updated regulations, including the provisions defining the scope
of sex discrimination and requiring schools to treat individuals consistent with their gender identity. It
concludes with some considerations for Congress.
Title IX: Prohibition and Exceptions
Title IX prohibits discrimination “on the basis of sex” in education programs or activities that receive
federal financial assistance. The statute and its implementing regulations impose a variety of obligations
on covered schools, ranging from how they respond to sexual harassment to how they administer their
athletics programs. Title IX’s statutory text exempts certain entities from its sex discrimination ban in
particular situations. For instance, educational institutions controlled by a religious organization need not
comply when application of the law would conflict with the organization’s religious tenets, and
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fraternities or sororities may maintain sex-based membership practices. The statute also permits certain
sex-based distinctions across the board. Recipients may “maintain[] separate living facilities for the
different sexes.” Long-standing regulations implementing the statute provide that recipients may maintain
sex-segregated bathroom facilities as long as those facilities are comparable. Regulations also permit
separate athletics teams based on sex, as well as single-sex classes in certain circumstances. The text of
Title IX does not define the term “sex.”
Bostock and Title VII’s Sex Discrimination Ban
In Bostock v. Clayton County, the Supreme Court ruled that Title VII’s ban on sex discrimination in the
workplace extends to discrimination based on sexual orientation and gender identity. That statute, among
other things, prohibits covered employers from discriminating against employees “because of . . . sex.” It
does not explicitly mention sexual orientation or gender identity. The Court in Bostock reasoned that the
phrase “because of” incorporates the “but-for” standard of causation: if an outcome would not have
occurred “but-for” the purported cause, causation is established. 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
people’s sexual orientation or gender identity without considering their sex. If an employer fires a man for
being attracted to men, but not a woman who is also attracted to men, the employer is treating the first
employee differently because of his sex. Likewise, if an employer fires a transgender man for being
transgender, the employer penalizes that person for traits that it would tolerate in a person assigned the
male gender at birth. In the Court’s view, sex is thus a but-for cause of sexual-orientation and gender-
identity discrimination, rendering such treatment a violation of Title VII. The Court did not indicate how
its reasoning would apply when a law prohibits sex discrimination but allows limited sex-based
differential treatment, as that question was not before the Court. The majority opinion explained that,
even with respect to Title VII, it did “not purport to address bathrooms, locker rooms, or anything else of
the kind.”
Application of Bostock to Title IX in Appellate Courts
Following the Court’s decision in Bostock (but before adoption of the updated Title IX regulations
discussed below), a number of federal appellate courts applied the reasoning of that case to Title IX,
including in contexts like bathroom access that Bostock did not address. The U.S. Court of Appeals for the
Fourth Circuit, for example, addressed a Title IX claim brought by a transgender male student challenging
a school board policy that prohibited him from using the bathroom consistent with his gender identity.
The panel concluded that the reasoning of Bostock guides consideration of Title IX claims and ruled that
the school board’s policy excluding the student from using the boys’ bathroom necessarily relied on his
sex, rendering sex a “but-for” cause of the board’s actions. The panel rejected the argument that Title IX’s
regulation authorizing separate bathrooms based on sex justified the policy. The court reasoned that the
regulation simply reflected that creating sex-separated bathrooms, by itself, is not discriminatory, “not
that, in applying bathroom policies to students . . . the Board may rely on its own discriminatory notions
of what ‘sex’ means.” The panel decided that the school board’s application of the bathroom policy to the
student was unlawful discrimination under Title IX.
That approach has not been uniform across the federal appellate courts. In another post-Bostock case, the
en banc U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit) 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. Sex-neutral bathrooms were also available to students. The Eleventh Circuit observed

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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
separating students on that same basis. The court ruled that because the school board policy separated
bathrooms along those lines, it complied with Title IX.
New Title IX Regulations: Sexual Orientation and Gender Identity
ED’s updated Title IX regulations, among other things, add a provision concerning the scope of prohibited
sex discrimination and a provision specifying that, absent an exception, policies that prevent individuals
from participating in education programs consistent with their gender identity violate Title IX.
Scope of Title IX’s Sex Discrimination Prohibition
The updated regulations provide that sex discrimination encompasses, among other things, discrimination
based on sexual orientation and gender identity. The preamble observes that Bostock determined that sex
discrimination in the Title VII context includes discrimination on those bases and that lower federal courts
have applied Bostock’s reasoning to Title IX. ED also supports its decision by pointing to the textual
similarity between Title VII and Title IX. It explains that banning discrimination “because of . . . sex”
(Title VII) and prohibiting discrimination “on the basis of sex” (Title IX) are phrases that both “simply
refer to discrimination motivated in some way by sex.” ED also points out that the Supreme Court in
Bostock used the phrases interchangeably. Just like Title VII, Title IX “clearly” covers sexual orientation
and gender identity discrimination “given that such bases of discrimination meet the same but-for
causation test relied upon in Bostock,” according to ED. As in Bostock, ED does not purport to “resolv[e]
the meaning of sex” and states that this interpretation holds even if the term is interpreted strictly “in
terms of certain physiological sex characteristics.”
Although the preamble recognizes that Bostock was limited to interpreting Title VII and did not address
other federal antidiscrimination laws, ED observes that this scope is consistent with the principle that
courts are limited to resolving the cases before them. Given the statutory similarities between Title VII
and Title IX, ED notes that courts often look to interpretations of the former to inform the latter.
Accordingly, in ED’s view, Bostock’s interpretation of Title VII properly informs ED’s regulatory
interpretation of Title IX.
Permissible Differential Treatment: De Minimis Harm Standard and Exceptions
One significant question is how ED’s interpretation will interact with Title IX’s statutory and regulatory
exceptions that explicitly permit differential treatment based on sex. Bostock did not address how its
reasoning might apply where sex-based distinctions are allowed, because that issue was not before the
Court. In contexts where Title IX permits sex separation, may a school separate students according to
their sex assigned at birth, even if such treatment is inconsistent with a student’s gender identity? The
updated regulations address this issue with a new provision. It states that in the limited situations in which
differential treatment or separation based on sex are allowed, recipients may not do so in a manner that
subjects someone to more than de minimis harm, “except as permitted by” Title IX.
The preamble explains that Title IX does not bar all sex-based distinctions; only those that cause an injury
or harm constitute “discrimination.” Sex-separated bathrooms and locker rooms are, according to ED,
contexts in which sex separation is generally permissible. However, the regulations provide that a policy

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or practice that prevents people from participating in education programs or activities consistent with their
gender identity constitutes more than de minimis harm. According to the regulations, denying transgender
students access to a separated activity or facility (such as a bathroom or locker room) consistent with their
gender identity would violate the statute absent an exception.
The preamble also explains that with respect to determining someone’s gender identity, some schools rely
on students’ “consistent assertion” of their gender identity or written confirmation by students or their
parents. ED cautions that requiring students to undergo “invasive medical inquiries or burdensome
documentation requirements” to participate in an activity consistent with their gender identity imposes
more than de minimis harm.
By contrast, Title IX allows for separation or differential treatment that causes more than de minimis
harm, ED states, under
• the various exceptions in the statutory text and their corresponding regulations, including
the religious institutions exception;
• the statutory exception allowing for sex-separated living facilities; and
• Title IX’s athletics regulations that allow separated athletics teams (discussed further,
below).
Recipients may apply sex-specific policies in those contexts, even if they do cause more than de minimis
harm to individuals. The preamble observes that the statutory living facilities exception extends no further
than its own terms. That carve-out does not apply to contexts like bathrooms, locker rooms, or shower
facilities.
Permissible Differential Treatment: Athletics
As mentioned above, athletics is a context in which, according to the new regulations, Title IX allows for
differential treatment that may cause more than de minimis harm. The other areas in which the regulations
permit sex separation that may cause harm are explicitly rooted in the statutory text. ED’s position on
athletics comes from the Javits Amendment, a bill passed in 1974 specifically directing the promulgation
of Title IX regulations with “reasonable provisions considering the nature of particular sports.” Under
those long-standing regulations, individuals may be excluded from a sports team based on their sex as
long as they have equal opportunities to access a school’s athletics program as a whole. ED has issued a
separate notice of proposed rulemaking on school athletics that would establish a standard for determining
eligibility to participate in sex-separated teams. The proposed rule would prohibit categorical bans on
transgender athletes competing consistent with their gender identity. It would allow schools to use some
tailored criteria that, for each grade or education level, sport, and level of competition, are
(1) substantially related to an important government objective and (2) geared to minimize harm. That
separate rulemaking is ongoing. (The proposal is discussed in this CRS Sidebar).
Considerations for Congress
Consistent with the Supreme Court’s interpretation of discrimination because of sex in the Title VII
context, ED’s new Title IX regulations provide that discrimination on the basis of sex in educational
programs encompasses discrimination based on sexual orientation and gender identity. The regulations
also provide that schools may not engage in differential treatment based on sex that imposes more than de
minimis harm, except as permitted by Title IX. Preventing individuals from participating in education
programs consistent with their gender identity, according to ED, imposes more than de minimis harm.

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If Congress disagrees with the new regulations, it has several avenues to alter applicable legal
requirements. Congress can amend the text of Title IX to expressly address the meaning of sex
discrimination under the statute. Such legislation could track the regulations or supersede them with
different provisions. Congress may also alter, remove, or add to the various exceptions within Title IX and
could refine how those exceptions should be applied under the statute. Congress could address how
allowances for differential treatment based on sex apply to transgender students. Alternatively, under the
Congressional Review Act, Congress could pass a joint resolution of disapproval of the regulations within
the time limits that statute requires. Enforcement of certain aspects of a regulation may also be limited
through passage of appropriations riders, although such provisions generally expire at the end of the
applicable appropriations cycle.



Author Information

Jared P. Cole

Legislative Attorney





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