The Redefinition of Sex-based Discrimination: Part I in a Series on the Biden Administration’s Final Title IX Rule
On April 29, 2024, the Department of Education published a 423-page final rule in the Federal Register amending its implementing regulations for Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in federally funded education programs and activities in the United States, with certain exceptions. This blog series examines the final rule’s most significant changes—related to the reinterpretation of the term “sex” in Title IX, requirements to address “sex-based harassment,” and the obligations of schools with regard to enforcement of Title IX and granting due process to those accused of discrimination. The final installment of the series will review legal challenges to the rule filed by states, school districts, and civil and parental rights groups in federal courts.
Beginning August 1, 2024, school districts and federally funded colleges and universities across the country will be subject to a sweeping new regulatory mandate from the U.S. Department of Education that requires them, under threat of federal investigations and resulting sanctions, to address discrimination on the basis of gender identity in their programs and activities. The Department’s final rule, published April 29, marks the first time in the 50-year history of Title IX that its implementing regulations have recognized discrimination “on the basis of sex” as covering discrimination on this basis (among others).
Specifically, Section 106.10 of the rule defines Title IX’s prohibition against “discrimination on the basis of sex” to include discrimination on the basis of “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” The Department defines “pregnancy or related conditions” in the regulatory text as including “[p]regnancy, childbirth, termination of pregnancy, or lactation,” as well as medical conditions related to or recovery from them. It does not define “sex” or any of the other concepts listed in Section 106.10 in the revised regulations; however, in the rule’s preamble, the Department says it understands “gender identity” to describe “an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.”
Section 106.31(a)(2) of the final regulations states that, “[i]n the limited circumstances in which Title IX or [the implementing regulatory code] permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation” in a manner that subjects an individual “to more than de minimis harm” (emphasis added), with exceptions. According to the regulatory text, policies or practices preventing a person “from participating in an education program or activity consistent with the person’s gender identity” subject that person to more than de minimis harm and thus violate Title IX. According to the preamble to the rule, “stigmatic injuries” alone that are caused by differential treatment constitute more than de minimis harm, as does basing a student’s participation in activities in line with that student’s gender identity on “invasive medical inquiries or burdensome documentation requirements.”
The regulatory text specifically exempts certain programs and activities from Section 106.31(a)(2)’s “more than de minimis harm” standard—but not from its redefinition of sex-based discrimination in Section 106.10. First, education programs and activities exempted from Title IX’s nondiscrimination mandate in 20 U.S.C. § 1681(a)(1) through (9) are not subject to the “more than de minimis harm” standard. These include religious institutions with contrary tenets, public institutions that have traditionally and continuously admitted only students of one sex, and social sororities and fraternities.
Second, the regulatory text does not subject to the “more than de minimis harm” standard “living facilities,” such as dormitories, exempted from Title IX’s nondiscrimination mandate in 20 U.S.C. § 1686. Importantly, the final rule interprets the term “living facilities” in 20 U.S.C. § 1686 as not extending to bathrooms, locker rooms, or other intimate facilities. Thus, despite the fact that the Department’s Title IX regulations have, since 1975, permitted schools to provide sex-separated bathrooms, locker rooms, and showers, schools will now risk sanctions if they do not allow individuals to use these facilities consistent with their gender identities, no matter their biological sex. Because, unlike biological sex, “gender identity” can refer to a multitude of (as the Department puts it) “senses” relating to one’s gender that often do not fit into either a male or female category, it stands to reason that the rule requires schools to offer individuals who do not identify with these binary categories gender-neutral or single-occupancy bathroom and locker room options.
Finally, the Department declines to apply its “more than de minimis harm” standard in Section 106.31(a)(2) to the provision of separate teams for the sexes when selection for the team is based on competitive skill or the activity is a contact sport, which is permitted by the current Title IX regulations at Section 106.41(b). However, this exception in Section 106.31(a)(2) does not change that the Department’s athletics regulations at Section 106.41, which prohibit “discrimination on the basis of sex,” will be subject to the new definition of this term set out in Section 106.10. Thus, Section 106.31(a)(2) notwithstanding, the new regulations necessarily require schools to prohibit discrimination on the basis of gender identity when they provide sex-separated athletics teams—leaving schools in an uncomfortable position regarding what kind of separation amounts to prohibited discrimination. The Department’s view of its administrative enforcement authority under the new rule likely aligns with the position taken by the Biden Justice Department in its statement of interest in B.P.J. v. West Virginia State Board of Education, maintaining that a blanket state law prohibiting biological males participating in female sports in schools that does not take into account “any individual’s specific circumstances” violates Title IX.
The Department promises to fill in the gaps left by its rule with regard to athletics when it finalizes a separate rule amending Section 106.41(b) to require schools to weigh allowing participation in sports on the basis of gender identity in every grade, sport, and level of competition. In the meantime, the Department declares in the preamble to its final rule that “nothing in the final regulations prohibits a recipient from . . . permitting [students] to participate consistent with their gender identity” in the athletics context. The Department thus forecloses any opportunity for biologically female athletes at schools or in states that force them to compete against biological males to seek administrative redress under Title IX.
My next post will examine the rule’s sweeping requirement that schools respond to what it calls “sex-based harassment” and its relevance to free speech and academic inquiry on campus.
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