Title IX and gender identity: Is change on its way? U.S. Department of Education expected to issue proposed new rule soon

This article, written by Megan Carrier, was originally published by the NHBR and can be found here.

Title IX is short in length, but big in impact. Only 37 words long, it provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Originally enacted as a little-noted provision buried in omnibus legislation, Title IX has grown in importance over the years, and its interpretation has been a source of controversy on more than one occasion.

During the Obama administration, the Department of Education issued various guidelines regarding the interpretation of Title IX, including a 2016 “Dear Colleague” letter that addressed transgender rights by requiring schools to allow students to use sex-segregated facilities like bathrooms and dorm rooms corresponding with their gender identity rather than their biological sex.

While most educational institutions treated the guidance as though it had the force of law and built their Title IX procedures around it, the guidance was repeatedly criticized because it had not been enacted in accordance with proper regulatory rulemaking procedures.

During the Trump administration, the Department of Education rescinded the guidance, and thereafter engaged in a formal rulemaking process which culminated in new rules that became effective on Aug. 14, 2020. Since then, many schools have been focused on revising their Title IX policies, practices and procedures in order to ensure compliance with the new rules.

April announcement expected

Despite the promulgation of formal rules, controversy surrounding the interpretation of Title IX has continued.

On June 16, 2021 — following a Jan. 20, 2021 executive order in which President Biden clarified that sexual orientation and gender identity are protected classes under federal sex discrimination laws — the Department of Education issued a Notice of Interpretation detailing its intent to enforce Title IX’s prohibition on discrimination on the basis of sex to include discrimination based on both sexual orientation and gender identity.

This, unsurprisingly, spurred 20 state attorneys general to sue the department, alleging, among other things, that the department did not pursue proper regulatory procedures (e.g. by following the formal rulemaking process, including the provision of a public comment period). On Dec. 10, 2021, the department’s assistant secretary for civil rights issued a statement confirming that the agency “is committed to … addressing discrimination based on sex, including sexual orientation and gender identity, in educational environments” and reflecting the Department’s intent to propose amendments to its regulations implementing Title IX to address these issues.

The Dec. 10 statement reflected the department’s intent to issue a notice of proposed rulemaking sometime in April 2022.

So now, we wait. Based on the information the Department of Education has released publicly, it is currently in the process of developing proposed amendments to the Trump era Title IX regulations. The proposed amendments will ultimately be published to the Federal Register as a “Notice of Proposed Rulemaking,” and the public will have an opportunity to comment within a set timeframe. Following the public comment period, the department will work to negotiate and finalize the final rules. It is currently unknown when the new rules would take effect.

Despite the fact that the proposed amendments have not yet been made public, the anticipated change is already a source of great controversy. Perhaps the biggest source of controversy relates to athletics.

All public schools and universities, and many private universities, receive federal funds and are therefore required to comply with Title IX. If adopted, the new rules are expected to prohibit these educational institutions from excluding transgender students from sports programs that correspond to their gender identities. In this sense, the proposed new rule is part of a push to protect transgender students following the adoption, by a number of states, of laws banning transgender girls and women from participating in girls’ and women’s sports. The clash between the proposed new rules and these state laws is not one which is likely to be resolved without a fight (or, more accurately, a number of fights).

While the precise language of any amendments to the Title IX regulations remains to be seen – particularly given that there may be changes to the initially proposed language in response to public comment – one thing is certain: Litigation surrounding the interplay between state laws and the new rules is undoubtedly on the horizon.