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Title IX Protections Apply Only to ‘Biological Sex,’ Education Department Memo Says

By Mark Walsh — January 10, 2021 6 min read
Flags decorate a space outside the office of the Education Secretary at the Education Department in Washington on Aug. 9, 2017.

The U.S. Department of Education has released an internal memorandum from its acting general counsel that stakes out the view that “sex” in Title IX refers only to biological sex, and that schools do not violate the law by refusing to allow transgender students to use restrooms and locker rooms or participate in athletics consistent with their gender identity.

“[B]ased on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term ‘sex’ in Title IX to mean biological sex, male or female,” says the Jan. 8 memorandum from Reed D. Rubinstein, the department’s principal deputy general counsel, to Kimberley M. Richey, the acting assistant secretary for civil rights. “Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so.”

The Education Department released the memo publicly less than two weeks before President Donald Trump’s term in office ends.

“Schools that receive federal funds from the Department of Education have a duty to comply with Title IX, including its application to discrimination on the basis of homosexuality or transgender status,” Richey said in a Jan. 8 email distributing the Rubinstein memo to “educators and stakeholders.”

The memo is not a formal regulation and it seems likely the incoming administration of President-elect Joseph R. Biden Jr. could withdraw it and proffer its own views of the scope of Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools.

The views in the memo are contrary to several recent federal court rulings that have interpreted Title IX to protect transgender students and to allow them to use restrooms or participate in athletics consistent with their gender identity.

The memo is “is unconscionable and legally flawed,” said a statement from Alphonso David, the president of the Human Rights Campaign, a Washington-based LGBTQ rights organization.

The HRC statement continued, “In her final moments at the Department of Education, Secretary Betsy DeVos prioritized punishing LGBTQ students.” The memo, and HRC’s response, came the same day that DeVos’s resignation took effect following the Jan. 6 assault on the U.S. Capitol by supporters of President Donald Trump.

Weighing the Impact of ‘Bostock’

The Rubinstein memo is styled as a discussion of whether Title IX was affected by the U.S. Supreme Court’s June 2020 decision that the main federal employment-discrimination law covers sexual orientation and gender identity.

Rubinstein, in the memo, stresses that the high court’s decision in Bostock v. Clayton County, Ga., concerned Title VII of the Civil Rights Act of 1964, which covers sex discrimination and certain other forms of workplace bias, and that the ruling did not construe Title IX, a law that primarily concerns discrimination against students.

“The court decided the [Bostock] case narrowly, specifically refusing to extend its holding to Title IX and other differently drafted statutes,” the memo says.

The 13-page question-and-answer memorandum then goes on to discuss how Title IX and its existing regulations affect sexual orientation and gender identity in such areas as “intimate facilities” like restrooms and locker rooms, athletics, and religious schools.

On restrooms and locker rooms, Rubinstein said the Education Department’s controlling 1970s-era Title IX regulations permit “schools to provide separate bathrooms, locker rooms, and showers ‘on the basis of sex,’ as long as the school provides comparable facilities for ‘each sex.’”

The memo continues: “Therefore, we believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing ‘separate toilet, locker room, and shower facilities on the basis of sex’ to regulate access based on biological sex.”

The memo acknowledges that this view runs contrary to decisions by two federal appeals courts last year that Title IX protected transgender students seeking to use school facilities consistent with their gender identity.

The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled last August for Virginia student Gavin Grimm in the transgender student’s long-running case. And also last August, the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled similarly for Florida transgender student Drew Adams.

“We are unpersuaded by the Title IX analysis” in those two decisions, Rubinstein said. The two rulings “failed to rigorously analyze Title IX’s plain text or to fairly address the legal consequence of the department’s unique implementing regulations,” the memo said. Those decisions also failed to note language in the Education Department’s 2020 final Title IX regulations regarding campus sexual harassment and assaults, the memo said.

The memo notes that the preamble to the 2020 regulation says: “Title IX and its implementing regulations include provisions that presuppose sex as a binary classification, and provisions in the department’s current regulations … reflect this presupposition.”

Rubinstein said the Education Department’s views “on the meaning of ‘sex’ in Title IX should have been given deference, or, at a minimum, addressed in the panel decisions, particularly because the statutory and regulatory definition of ‘sex,’ or supposed lack thereof, was purportedly critical to the outcome in both cases.”

Transgender Participation in Athletics

In the area of athletics, the Rubinstein memo asserts that schools must provide “separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.”

The Supreme Court’s Bostock decision “does not diminish the relevance of biological sex in athletics, and does not address the validity of the department’s historic measures to ensure biological females (girls and women) have equal opportunities to participate in athletics because males and females are not similarly situated with respect to athletic competition,” the memo says.

That view is consistent with an approach taken by the department’s office for civil rights in a controversy in Connecticut over participation by transgender female athletes in female categories in sports such as track and field. The policy of the Connecticut Interscholastic Athletic Conference that supports the transgender female athletes has been challenged by cisgender females in the OCR action and in a lawsuit that is pending before a federal district judge.

In a separate case in Idaho, a federal district judge last year blocked a state law that bars transgender females from participating in girls’ or women’s school sports teams. The judge ruled on the basis of the 14th Amendment’s equal-protection clause, but his 87-page opinion also discussed Title IX principles.

The judge concluded that the Supreme Court’s Bostock decision did indeed support the view that Title IX’s protection against sex discrimination would apply to sexual orientation and gender identity. The judge said the OCR’s letter in the Connecticut case was “of questionable validity” given the Bostock ruling.

Rubinstein’s memo also addresses religious institutions, saying that nothing in the Bostock decision affects a statutory exemption in Title IX for educational institutions controlled by religious organizations.

“The department’s regulations implementing Title IX do not and lawfully could not require a recipient to restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution, including the free exercise of religion,” the memo says.

Perhaps ironically, one transgender student’s case was for a time centered on whether the Obama administration’s informal guidance in support of transgender students was entitled to deference from the courts. The Supreme Court had granted review of Gavin Grimm’s case in 2016 to review the deference issue, but sent the case back to lower courts when the Trump administration withdrew the Obama guidance.

At that time, many groups that oppose allowing transgender students to use facilities consistent with their gender identity also argued that the Obama Education Department’s informal guidance merited no judicial deference.

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