Recent court and OCR decisions regarding transgender students and employees reflect widely varying responses to the Biden administration’s efforts to expand protections for LGBTQ+ individuals under federal law, including Title IX. In January 2021, President Biden issued an executive order applying the Supreme Court’s decision in Bostock v. Clayton County to all federal laws prohibiting sex-based discrimination, clarifying that sex discrimination includes discrimination based on gender identity and sexual orientation. 

Several recent decisions have affirmed the Biden administration’s interpretation of federal protections. For instance, in January, a federal court in the District of Maryland ruled that a transgender teacher could move forward with her lawsuit against her former public school district for harassment and retaliation she experienced at the schools where she taught. Echoing Bostock, the court determined that the teacher’s harassment was sex-based because “it is impossible to discriminate against a person for being…transgender without discriminating against that individual based on sex.”  

In June, the Department of Education’s Office for Civil Rights (OCR) issued a resolution letter to Tamalpais School District in California determining that the district had failed to respond in a prompt and equitable manner under Title IX to a transgender student’s allegations of harassment by another student, thus causing the transgender student to “experience a hostile environment on the basis of sex.” The resolution agreement contained a provision that the district must revise its policies and procedures to clarify that sex-based harassment includes harassment based on sex stereotyping. 

However, a federal court in Tennessee ruled in favor of 20 Republican-led states who filed a complaint challenging federal agency guidance that reinforced the Biden administration’s protections for LGBTQ+ students and employees. The federal guidance issued by the Department of Education and the Equal Employment Opportunity Commission (EEOC) followed President Biden’s January 2021 executive order. The court determined that the states who brought the lawsuit suffered harm to their sovereign interests since the federal guidance conflicted with state laws, including laws that prohibited transgender students and employees from using restrooms or participating in sports in a manner consistent with their gender identity. As a result, the Department of Education and the EEOC are temporarily barred from enforcing the guidance in these 20 states while their lawsuit is ongoing. (Last week, the Department of Justice announced that it would appeal the federal court’s decision.)

While the injunction does not directly impact Illinois, the lawsuit likely foreshadows legal challenges to the Biden administration’s proposed Title IX regulations, which would formalize federal protections for LGBTQ+ individuals. However, if states bring a legal challenge to the final regulations’ protections for LGBTQ+ individuals (and indeed a coalition of Republican attorneys general have already threatened to sue should the final Title IX rule include protections for transgender athletes), a federal court may similarly rule in favor of states whose laws conflict with the regulations, and the issue may make its way to the Supreme Court. 

Regardless of the current state of federal laws and regulations, institutions may choose to provide policy-based protections for LGBTQ+ students and employees based on gender identity and sexual orientation. We will keep you posted on updates regarding LGBTQ+ protections under Title IX and related litigation. Please contact any member of our Title IX team if you have questions. 

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.