A Continuing Evolution of Legal Standards
In recent years, as part of their good-faith efforts to better serve the interests of all their students and protect them against any type of discrimination in the educational environment, school and athletics administrators nationwide have struggled to ensure that their institutions are in compliance with legal mandates regarding LGBTQ students, including the sports participation rights of transgender student-athletes and access by trans athletes to facilities such as restrooms, locker rooms and showers.
One of the greatest challenges for school and sports personnel in meeting that challenge has been the extreme politicization of the issue and the rapidly evolving legal standards governing athletics participation and facilities access rights of transgender students. The 2020 calendar-year has seen several significant legal pronouncements on the topic, including the following.
CIAC Case & OCR Revised Letter of Impending Enforcement Action
On August 31, 2020, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Revised Letter of Impending Enforcement Action updating its approach to Title IX enforcement in light of the U.S. Supreme Court’s June 15, 2020, 6-3 decision in Bostock v. Clayton County, in which the high court held that an employer who discriminates against an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
Although the Supreme Court’s ruling in the Bostock case, a consolidation of three lawsuits alleging discrimination against LGBTQ persons in the workplace – employment law being the subject of Title VII – did not explicitly address legal standards related to such bias under other statutes such as Title IX, the Court’s conclusion that a person’s “sex” is defined by gender identity, not by biological gender, has given rise to much speculation as to how it might rule in some future case addressing Title IX discrimination issues involving the right of trans student-athletes to participate in sports and to use school facilities such as restrooms, locker rooms and showers.
On May 15, 2020, the OCR had issued its original Letter of Impending Enforcement Action in response to a complaint alleging that the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts in the state violate Title IX with a policy that permits transgender student-athletes to compete based on their gender identity. The complaint, accompanied by the separate filing of a federal lawsuit, Soule et al v. Connecticut Association of Schools, was lodged by three female cisgender (non-transgender) track athletes asserting that it was impossible for cisgender female athletes to prevail in sports competitions against transgender girls, thus purportedly denying cisgender females the opportunity to place higher in meets, win championships, attract the attention of college coaches and obtain scholarships – all alleged violations of Title IX which prohibits discrimination based on sex in federally funded education programs, including athletics.
In both the original letter issued in May 2020 and the revised, post-Bostock version issued in August 2020, the OCR concluded that for purposes of Title IX enforcement, the agency considers the term “sex” as used in the Title IX statute to be biological gender, not gender identity, and that it therefore finds the transgender participation policy of the CIAC and school districts to be in violation of Title IX (the revised letter is available here.
Ultimately, the legal question whether the term “sex” in Title IX and for purposes of the application of Equal Protection principles is to be defined as gender identity or biological gender will depend on resolution of the issue by the courts. The Soule et al v. Connecticut Association of Schools lawsuit is still in its early stages and is not likely to be docketed for trial until sometime in 2021. A definitive resolution of the question could be the result of a grant of certiorari by the U.S. Supreme Court and an on-point decision by the Court in an appeal of a case addressing the question, one that has become highly politicized with the Trump administration vowing to extend its Title IX Guidance from the OCR that defines biological gender as the controlling factor and presidential candidate Joe Biden pledging to reinstate the Obama-era Title IX Guidance which defines gender identity as the controlling factor.
The following are several of the judicial decisions issued during 2020 which are representative of the trends in rulings on the issue by U.S. District Courts and U.S. Circuit Courts of Appeal nationwide.
G.G. v. Gloucester County School Board
On August 26, 2020, the U.S. Fourth Circuit Court of Appeals ruled in favor of Gavin Grimm, who as a sophomore at Gloucester County (Virginia) High School in 2014 was barred from using boys’ restrooms and filed a lawsuit resulting in a June 2016 Fourth Circuit decision that the term “sex” in the Title IX statute refers to gender identity, not biological gender at birth, and that to restrict a student’s use of school facilities because he is transgender constitutes illegal discrimination in violation of Equal Protection principles and Title IX law.
The 2016 ruling was predicated on the OCR Title IX Guidance issued during the Obama presidency (referred to above) clarifying the rights of LGBTQ students in education and school activities such as sports. The U.S. Supreme Court had agreed to hear an appeal of the case and oral arguments were docketed for March 2017, but during President Trump’s first month in office, the Obama Title IX Guidance was revoked by the new president’s administration and the Supreme Court sent the case back to the lower courts for a rehearing.
The 2020 Fourth Circuit decision in the G.G. case upheld a 2019 ruling following that rehearing by a District Court which concluded that even in the absence of the Obama-era Title IX Guidance, gender identity is the controlling factor governing the rights of transgender students in education and activities such as sports. “At the heart of this appeal is whether equal protection and Title IX can protect students from school bathroom policies that prohibit them from affirming their gender,” stated the written opinion in the case. “We join a growing consensus of courts in holding that the answer is resoundingly yes.”
Adams v. St. Johns County School Board
On August 7, 2020, the U.S. Eleventh Circuit Court of Appeals upheld a District Court ruling that a Nease High School (Ponte Vedra Beach, Florida) policy preventing Drew Adams, a transgender boy, from using school facilities such as restrooms, locker rooms and shower rooms corresponding to his gender identity (male), not to his biological gender at birth (female), violated both his Equal Protection rights under the U.S. Constitution and his educational rights as set forth in the Title IX statute. The counterargument, asserted by school administrators, was that the policy was designed to protect the privacy of cisgender students when they used such facilities.
The written opinion in the case noted that “Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, he argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view. The School Board has demonstrated no substantial relationship between excluding [Adams] from the communal [facilities] and protecting student privacy.”
“After extensive evidence was presented at trial, the District Court found that [Adams] presence in the boys’ [facilities] does not jeopardize the privacy of his peers in any concrete sense. When [he] uses the restroom, he enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. The School Board received no reports of privacy breaches [during Adams’ use of boys’ facilities]. Indeed, the School Board could not produce any complaints of untoward behavior involving a transgender student. Nor could the School Board point to any incidents across the country in which allowing transgender students to use [school facilities] according their gender identity compromised other students’ privacy.”
Idaho Law Restricting Sports Participation By Transgender Girls Enjoined
On August 17, 2020, in Hecox et al v. Little, a U.S. District Court in Idaho issued an injunction blocking the implementation of a state statute, Idaho HB500, limiting participation by transgender women and girls on university and high school athletics teams, concluding that the law violates the Equal Protection guarantees set forth in the Fourteenth Amendment to the U.S. Constitution. A lawsuit was filed by transgender Idaho college and school athletes in March 2020 after HB500 was enacted and the TRO issued by the federal court will bar its implementation pending a full trial in the case.
In issuing the injunction, the District Court concluded “In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue, but the constitutional rights of every girl and woman in Idaho. Because the Court finds Plaintiffs are likely to succeed in establishing the Act is unconstitutional … it must issue a preliminary injunction at this time pending trial on the merits.”
Although Idaho’s law was the first of its type to be enacted, similar legislation – including several proposed statutes containing a provision like one in Idaho’s mandating that schools perform intimate physical examinations of any student-athlete who is even suspected of being trans – has been introduced in more than a dozen states to ban transgender females from college and high school sports teams, despite actual evidence that trans athletes do not win every competition. In fact, in February 2020, just a few days after serving as one of the complainants in the OCR filing against the CIAC and one of the plaintiffs in the accompanying Soule federal lawsuit filed in Connecticut (see above), Chelsea Mitchell of Canton High School – a cisgender sprinter who claimed in the filings that she should not have to run against trans competitors because she had absolutely no chance of ever prevailing against them athletically – won the Connecticut Class S 55-meter dash state championship with a time of 7.18 seconds, edging Terry Miller of Bloomfield High School, one of the transgender girls specifically mentioned in the filings, who finished the race at 7.20 seconds.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.