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Between a Rock and a Hard Place
BY ISABELLE YOUNG
Pursuant to the basic premise that every student deserves educational opportunity free from discrimination, Congress enacted Title IX as part of the Education Amendments of 1972 to prohibit sex-based discrimination in educational programs and activities that receive federal funds. Congress simultaneously authorized the Department of Education (DOE) to issue regulations to enforce the prohibition against sex discrimination and to terminate financial assistance to institutions that do not comply.
Fast forward 50 years to April 2024, when the DOE released long-awaited revisions to the 2020 regulations, which became known as the Final Rule. The Final Rule, which among other changes expanded Title IX protections to include transgender students, triggered a tsunami of legal challenges across the country causing significant uncertainty about the state of the law. Before any of these challenges could reach the United States Supreme Court, however, President Donald Trump was elected to his second term, and his administration acted to rescind the Final Rule. Within weeks of President Trump taking office, his administration also issued several executive orders affecting how school districts interpret and apply Title IX. The 2020 regulations once again govern school districts, but plenty of uncertainty remains.
Title IX: An Introduction to the Chaos
Title IX's nondiscrimination mandate states that "[n]o 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." There are only a small number of "specific, narrow exceptions to that broad prohibition."[1]
Throughout the years, DOE has promulgated regulations effectuating Title IX, including in 2020, when it specified how recipients of federal funds must respond to allegations of sexual harassment. One month after DOE published the 2020 regulations, the Supreme Court held in Bostock v. Clayton County that the prohibition on discrimination "because of ... sex" in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(i), necessarily encompasses discrimination because of sexual orientation and gender identity.[2]Following Bostock, President Joe Biden directed DOE to review the 2020 regulations and existing agency guidance "for consistency with governing law."[3]In July 2022, DOE issued a "Notice of Proposed Rulemaking."
Understanding Bostock
In Bostock the Supreme Court explained, in an opinion written by Justice Neil Gorsuch, that Title VII's "because of" language "incorporates the 'simple' and 'traditional' standard of but-for causation."[4] "[S]ex is necessarily a but-for cause" of discrimination on the basis of transgender status "because it is impossible" to discriminate against a person for being transgender "without discriminating against that individual based on sex."[5] To illustrate the point: if, for example, an employer "fires a transgender person who was identified as a male at birth but who now identifies as a female," but "retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth."[6]The Court explained that "the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."[7] This is so even assuming "sex" in Title VII "refer[s] only to biological distinctions between male and female."[8]
Bostock and the rationale set forth in the opinion is what prompted DOE to revise its Title IX regulations and issue the Final Rule to ensure that protections against sex discrimination extend to sexual orientation and gender identity.
The Fourth Circuit's application of Bostock
Relying on Bostock, the Fourth Circuit Court of Appeals held in Grimm v. Gloucester County School Board[9] that discrimination based on gender identity is subject to heightened scrutiny because transgender people constitute a qua-si-suspect class. The court explained:
Although Bostock interprets Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), it guides our evaluation of claims under Title IX. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); cf. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) ("Congress modeled Title IX after Title VI ... and passed Title IX with the explicit understanding that it would be interpreted as Title VI was." (citation omitted)). In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination "on the basis of sex." As the Supreme Court noted, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Bostock, 140 S. Ct. at 1741. That is because the discriminator is necessarily referring to the individual's sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator's actions. See id. at 1741-42. As explained above in the equal protection discussion, the Board could not exclude Grimm from the boys bathrooms without referencing his "biological gender" under the policy, which it has defined as the sex marker on his birth certificate. Even if the Board's primary motivation in implementing or applying the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board's actions. Therefore, the Board's policy excluded Grimm from the boys restrooms "on the basis of sex."[10]
Four years later, in Kadel v. Folwell, [11]the court reaffirmed that heightened scrutiny applies to transgender persons' equal protection claims. The court was tasked with applying the Affordable Care Act's antidiscrimination mandate: "[e]xcept as otherwise provided ... an individual shall not, on the ground prohibited under Title VI of the Civil Rights Act ..[and] Title IX ..be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance," and noted that "for guidance" in evaluating a Title IX claim, the Fourth Circuit relies on case law interpreting Title VII. The court ruled as follows:
Appellants argue that Bostock is the wrong standard because it was "limited to Title VII claims involving employers who fired employees because they were gay or transgender." But there is nothing in Bostock to suggest the holding was that narrow. Appellants also argue
that "[historically in terms of Title IX jurisprudence, the term 'sex' referred to the binary sex of male and female, and 'gender identity' was understood as a distinct concept." But Bostock was based on that assumption. 140 S. Ct. at 1739 ("[B] ecause nothing in our approach to these cases turns on the outcome of the parties' [historical] debate ... we proceed on the assumption that 'sex' ... referr[ed] only to biological distinctions between male and female."). So even if the definition of sex under Title IX encompasses only binary sex, West Virginia's policy still violates the ACA.[12]
The defendant petitioned...
