Happy New Year from the Title IX team at Franczek! Over the next several posts, we will be providing Title IX updates from the end of 2022 that you might have missed, as well as noteworthy items to keep an eye on in 2023. Below, we cover recent federal court decisions on school district policies regarding transgender students, which we predict will continue to be a major issue this year.  

In December, the Second Circuit Court of Appeals in New York upheld the dismissal of a lawsuit brought by cisgender female track athletes challenging the policy of the Connecticut Interscholastic Athletic Conference (CIAC) that allows transgender athletes to compete on sports teams aligning with their gender identity. In Soule v. Connecticut Association of Schools, the plaintiffs argued that the transgender-inclusive policy violated Title IX, alleging that the policy disadvantages cisgender girls compared to “students who are born male.” However, the court found that the legal landscape on this issue has fluctuated significantly in recent years. The court found no clear legal determination that CIAC’s policy violated the law—in fact, the court stated, CIAC had grounds to assume that their policy would not violate Title IX, based on recent OCR statements and federal cases determining that Title IX protects transgender individuals. Because of this uncertainty in the law, the court found that CIAC did not have adequate notice that their policy violated Title IX. The court concluded that since CIAC did not have adequate notice that they would be liable under Title IX, claims for money damages were barred in this case. 

Also in December, the Federal District Court of Massachusetts held in Foote v. Town of Ludlow, Ludlow School Committee that a school district’s policy requiring school staff to use students’ preferred names and pronouns and prohibiting staff from sharing this information with parents without students’ permission did not violate parents’ rights under the Fourteenth Amendment. The parents who sued the school district alleged that this policy violated their fundamental rights to direct the education and upbringing of their children, make medical and mental health decisions for their children, and preserve their right to family privacy. The court dismissed these claims, pointing out that the district’s policy did not rise to the level of a constitutional violation, and that referring to a person by their preferred name or pronouns could not be seen as a mental health treatment, particularly when the student did not have a diagnosis.  

In late December, however, in Adams v. The School Board of St. Johns County, Florida, the 11th Circuit Court of Appeals in Georgia upheld a Florida high school district’s policy forbidding transgender students from using bathrooms aligning with their gender identity, stating that the bathroom policy did not violate the Constitution’s Equal Protection clause or Title IX. The majority opinion by a panel of Republican-appointed judges concluded that the district had an important interest in protecting students’ privacy interest and that the “plain and ordinary meaning of ‘sex’ in 1972,” when Title IX first took effect, permitted the policy separating bathrooms based on biological sex. The court noted that a ruling for the transgender plaintiff would have “broad implications for sex-separated sports teams at institutions subject to Title IX,” and that “equating ‘sex’ to ‘gender identity’ or ‘transgender status’ would also call into question the validity of sex-separated sports teams.” 

These recent federal court decisions highlight the continuing uncertainty surrounding transgender student rights under Title IX. The Department of Education has promised to engage in a separate rulemaking process to address Title IX’s application to athletics that will likely echo the proposed regulations’ strengthened protections for LGBTQ+ students. However, questions—and conflicting court decisions—about school policies regarding transgender students will no doubt continue to reverberate throughout the legal landscape this coming year. 

If you have any questions about these decisions and how they may apply to your policies, please reach out to your Franczek attorney.  

*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.