Transgender Student Update: Federal Court Decisions and Agency Guidance

In our June 25, 2020 School Law Notes, we addressed the U.S. Department of Education’s Office for Civil Rights (OCR) “Letter of Impending Enforcement Action” issued against the Connecticut Interscholastic Athletic Conference (CIAC). In that letter, OCR deter­mined that CIAC’s policy of allowing transgender stu­dents who were “biologically male” to compete on female athletic teams and in female athletic events violated Title IX by discriminating against women.

In those same School Law Notes, we summarized the U.S. Supreme Court’s landmark decision in Bostock v Clayton County, 140 S. Ct. 1731 (2020), which held that that Title VII’s protection against sex-based dis­crimination in the workplace applies to sexual orienta­tion and gender identity. The Court stated that it was impossible to discriminate based on sexual orientation or transgender status without also discriminating based on sex. The Court declined to comment, however, on specific workplace and school issues, such as access to single-sex restrooms and locker rooms.

On August 31, 2020, OCR issued a “Revised Letter of Impending Enforcement Action” (Revised Letter) to the CIAC, stating that the Bostock decision “does not affect the department's position that its regulations au­thorize single-sex teams based only on biological sex at birth - male or female - as opposed to a person's gender identity." OCR pointed to the Court expressly declining to address how its decision in Bostock would apply to Title IX.

On the same day, OCR also issued a letter stating that “the Bostock opinion guides OCR’s understanding that discriminating against a person based on their . . . identification as transgender generally involves dis­crimination on the basis of their biological sex.” OCR distinguished this letter from its position in the Revised Letter, opining that Bostock does not impact its position that sports teams and “intimate facilities” (locker rooms and restrooms) can be separated by “biological sex.”

School officials should be aware that OCR’s position on transgender student locker room and restroom use and participation in athletics runs contrary to federal court precedent involving transgender students, in­cluding three cases decided after Bostock. In August 2020, the 4^th Circuit Court of Appeals and the 11^th Circuit Court of Appeals, whose decisions are persua­sive but not binding in Michigan, held that Title IX pro­tects transgender students and prohibits schools from discriminating against them based on gender identity in the context of restroom access. Both courts cited to the Bostock decision, with the 11^th Circuit explicitly stating that “[w]ith Bostock's guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.”

Similarly, a federal judge recently issued a preliminary injunction prohibiting enforcement of an Idaho law that barred transgender female students from participating on female school athletic teams. OCR had previously issued a statement supporting the law being upheld. The judge found that the plaintiffs were likely to succeed in demonstrating that the Idaho law violated the 14^th Amendment’s Equal Protection Clause and Due Process Clause and opined that OCR’s position was “of questionable validity given the Supreme Court’s recent holding in Bostock.”

In Michigan, Revised School Code Section 1289 allows female students “to compete for a position in all interscholastic athletic activities,” including male sports. This provision does not address male participa­tion in female athletic activities. Because of this provi­sion, the Michigan High School Athletic Association (MHSAA) policy does not prohibit females from partic­ipating on male teams. For transgender female participation on girls’ teams, however, MHSAA will make eligibility decisions on a case-by-case basis. At least 30 days before the opt-out date of any tournament in which a transgender female student seeks to partici­pate, schools must provide specific documentation to the MHSAA Executive Director (e.g., school records, le­gal records, medical documentation) demonstrating the student’s gender. The MHSAA Executive Director will then make the final eligibility determination.

We recommend handling transgender student requests to participate in sports or use facilities con­sistent with their gender identity on a case-by-case basis with the assistance of legal counsel. As discussed above, federal case law on transgender students sup­ports the position that those students have a right to participate in sports and use facilities that correspond with their gender identity. While OCR has the “first bite at the apple” when interpreting Title IX, its decisions are subject to court review.

We anticipate litigation will continue on transgender student participation in athletics and facility use issues. We will provide an update if there are any new developments.