Rules on Accommodating Gender Identity Still in Limbo
The U.S. Department of Education (ED) has published a draft of regulations on Title IX of the Education
Amendments of 1972 and the definition of “sex.” The definitions of “sex” and “sex discrimination” in
the draft educational rule includes gender identity, sexual orientation, sex characteristics, and sex
stereotypes – as well as pregnancy – which would dramatically broaden federal protections if finalized
as written. The comment period for the rule closed on September 12th, and it garnered more than
240,000 public comments, double the number prompted by a previous draft rule on Title IX. ED must
now review the comments and determined whether changes should be made in response before it
publishes a final version. That process takes some time, and likely a rule will not be finalized until the
first half of 2024.
ED has said that it will also issue standalone regulations on gender identity and athletics but has not yet
said when they plan to do so. The athletics rule is also substantially likely to draw litigation because of
the large number of conflicting State rules, and separating the two makes it more likely that one might
survive a legal challenge.
As it works to draft its final rule, ED has relied on a “Notice of Interpretation” published in June of 2021.
That notice is slightly narrower than the proposed Title IX rule, but defines “sex” to include gender
identity and sexual orientation. This interpretation is based on the Supreme Court decision in Bostock v.
Clayton County, which held that questions of gender identity and biological sex were inextricably linked.
However, the decision in Bostock was based on employment law and the opinion discourages courts and
others from applying the same principles as precedent in other areas where individual consideration
might be needed.
Further complicating matters, earlier this fall a federal court in the Eastern District of Tennessee
overturned the Notice of Interpretation, saying that it was an unallowable use of non-regulatory
guidance and that it interfered with States’ ability to make and enforce their own laws. The plaintiffs and
the court in this case also noted the instructions in Bostock that the Court’s decision should not be
applied broadly. ED and DOJ have announced their intention to appeal this ruling, likely in an attempt to
preserve both the principle of the rule and the idea that the federal government can continue to enforce
federal jurisprudence even when State law conflicts.
For the time being, however, in the absence of both a final rule or applicable guidance, there is no
enforceable federal law or policy regarding participating in athletics. That said, ED has made it clear that
they believe trans students should be able to participate in gender-segregated teams or events that
align with their gender identity and will likely continue to use that interpretation when reviewing
complaints or other issues. The agency’s ability to enforce those decisions will still depend on where
federal courts in your State or region stand, so districts should watch this issue carefully.
