The U.S. Department of Education’s Office for Civil Rights, or OCR, recently issued a Notice of Interpretation stating that Title IX of the Education Amendments of 1972 prohibits discrimination against LGBTQ+ students and employees in public schools, colleges, universities, and other recipients of Department funds. This would not necessarily be big news, because the United States Supreme Court recently recognized similar rights for employees under Title IX’s sister statute, Title VII of the Civil Rights Act of 1964. But it is news for schools. It’s the next chapter in OCR’s ever-changing position on this important question (from vigorous enforcement under the Obama administration to the Trump administration’s flip-flop in 2017 and subsequent clarification after Bostock in 2020). And although the information ED released answered some questions, many important questions remain.
Continue Reading Unanswered Questions on OCR’s About-Face on Transgender Rights
Is OCR’s New Approach to Trans Rights in Schools Really Inconsistent? Here’s Why It’s Not
On September 8, 2020, an Education Dive article quoted me about two recent letters from the U.S. Department of Education’s Office for Civil Rights (OCR) on the impact on Title IX of this year’s landmark U.S. Supreme Court decision on sexual orientation discrimination in employment. OCR’s position: Title IX, like Title VII, now protects against discrimination based on sexual orientation and gender identity in schools. But that does not mean that schools can grant transgender students equal access to sex-segregated facilities or sports teams, says OCR. Media reports suggest the Department’s stated approaches are “totally at odds”–but are they? Here is a summary of the letters and why they seem pretty consistent, after all.
Continue Reading Is OCR’s New Approach to Trans Rights in Schools Really Inconsistent? Here’s Why It’s Not
More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux
It seems like all we talk about these days in the Title IX world is sexual harassment, as we scramble to implement new Title IX regulations that go into effect in August. Yet, this week brought significant news with respect to another side of Title IX—the rights of transgender students under the Federal law.
In a Letter of Impending Enforcement Action from May that came to light yesterday, the Department of Education’s Office for Civil Rights (OCR) threatened to take away federal funding from six Connecticut public high schools and the state’s athletics conference for allowing “biologically male” transgender female students to compete on girls athletic teams, which OCR found violates the Title IX rights of the cisgender female students on the teams. According to OCR, female students, unlike their male counterparts, were denied the ability to compete “on a level playing field” in athletics by not being allowed to compete against only cisgender female students.
We know that the Department has been pulling back on Title IX protections for transgender students for some time, so why is this news? Because as Title IX has become less useful for transgender advocates, they have turned to state laws (including in Illinois), which have been instrumental in the fight for access to facilities and activities based on gender identity in recent years.
Federal law generally preempts state law, however, so if Title IX prohibits providing equal access because of impacts on cisgender female students, schools may be required to disregard state law to avoid violating Title IX. Although the OCR decision appears to be limited to the realm of athletics, we have come to learn that with OCR these days, nothing is certain. This OCR letter, coupled with an imminent decision from the U.S. Supreme Court in the Title VII case Harris Funeral Homes v. Equal Employment Opportunity Commission, threaten to drastically upset the certainty for educational institutions regarding the laws governing transgender rights in schools.
Continue Reading More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux
The Next Mile in Gender Litigation: Transgender Participation in Women’s Sports
With Guest Authors Jennifer Smith and Kendra Yoch
Litigants challenging the opening of women’s restrooms and locker rooms in schools to transgender females have roundly been defeated. While the Supreme Court could always change the trend, cases like Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board show that it is increasingly settled that students and employees must have access to facilities consistent with their gender identities. Activist litigants, however, such as Alliance Defending Freedom (ADF), have turned their attention to a different issue: transgender athletes’ participation in women’s sports.
Continue Reading The Next Mile in Gender Litigation: Transgender Participation in Women’s Sports
Can a Transgender Female Student Compete on a Girls’ Sports Team? Supreme Court Justices Address the Question in LGBT Employment Case
The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students.
Continue Reading Can a Transgender Female Student Compete on a Girls’ Sports Team? Supreme Court Justices Address the Question in LGBT Employment Case