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.

The OCR Complaint

As we reported earlier this year, those of us who follow Title IX have had our eyes on recent legal challenges to transgender athletes’ participation in women’s sports. One of the legal challenges relates to a complaint filed with OCR in mid-2019 by Alliance Defending Freedom, a nonprofit organization that advocates for Christian religious liberty. ADF filed the complaint on behalf of three cisgender female high school track athletes who lost races to transgender female athletes. The complaint alleged that by allowing “boys who are male in every biological and physiological respect” to compete against cisgender female athletes, high schools and the Connecticut high school athletics association failed to provide equal opportunities for females to participate in athletics as required by Title IX.

The OCR Decision

The 45-page decision from OCR details the complaints of cisgender female students and their families that due to the participation of two transgender female athletes in track meets, cisgender females lost out on opportunities such as advancing to the finals in events, participating in higher-level competitions, receiving awards, medals, and other recognitions, and gaining greater visibility to colleges, among other lost benefits. OCR’s analysis of the complaint includes detailed tables specifying the times of transgender female athletes as compared to cisgender female athletes, which OCR concluded shows that cisgender female athletes have been displaced by transgender female athletes with respect to benefits. Based on the information provided, OCR found that the athletic association and high schools denied female student athletes benefits as compared to male athletes and therefore discriminated against them based on sex.

Potential Impacts in Connecticut and Beyond

In a statement to the Associated Press, the Connecticut Interscholastic Athletic Conference stood by its policy, stating:

Connecticut law is clear and students who identify as female are to be recognized as female for all purposes—including high school sports. To do otherwise would not only be discriminatory but would deprive high school students of the meaningful opportunity to participate in educational activities, including interscholastic sports, based on sex-stereotyping and prejudice . . . .

But that’s the rub. If Title IX does conflict with state law, doctrines of supremacy hold that Federal law prevails. In my experience, OCR does not fold in investigations simply because a school claims that state law allows them to do something that OCR deems to be discriminatory. At least with respect to participation in athletics by transgender athletes, this puts schools, colleges, and universities in a difficult position. Comply with state law, and potentially violate Title IX and face an OCR complaint. Comply with OCR’s interpretation of Title IX, and you potentially violate state law.

The Harris Complication

Add to the Title IX vs. state law uncertainty the Supreme Court’s decision in Harris, which will be released before the Court’s term closes at the end of June. In Harris, the Court will decide once and for all whether Title VII covers discrimination based on LGBT status. Notably, the case has received some attention this week in the Title IX realm, based on comments from the three-judge panel of the U.S. Court of Appeals for the 4th Circuit in the oral arguments for the well-known litigation involving Gavin Grimm.

As Education Week reported:

The participants [in the oral argument] seemed to agree that [the] pending [Harris] Supreme Court decision on whether the protection against sex discrimination in employment under Title VII of the Civil Rights Act of 1964 covers transgender status could be relevant for the same question regarding students under Title IX.

Indeed, one judge went so far as to suggest that no matter how the Harris case came out, it would determine the outcome of the Title IX claim in the Grimm case.

If the Supreme Court were to decide that transgender status is protected under Title VII directly, and other courts applied that reasoning to Title IX, for instance, it would render OCR’s Letter of Impending Enforcement Action unsound. Specifically, if transgender female students are protected under Title VII and Title IX, allowing them to participate in female sports cannot limit the rights of cisgender female students, as OCR decided here.

What’s Clear is Nothing is Clear

These events and uncertainties make one thing clear—much is in flux for schools, colleges, and universities right now with respect to responsibilities toward transgender students, particularly in the realm of athletics. Because the same issues addressed in the OCR complaint are the subject of a federal lawsuit, and the Harris decision will be decided any day now, we may receive some additional clarification soon. Either way, educational institutions across the country would be well served to contact legal counsel to determine a plan of action with respect to the coming school year.