Over the past decade, protections for LGBTQI+ students have changed frequently and dramatically with each political administration. Guidance issued during the Obama administration explicitly stated that LGBTQI+ students were protected under Title IX, but, like other Obama-era policies, these protections were never subjected to formal rulemaking. The Dear Colleague Letter on Title IX and Transgender Students was rescinded in February of 2017.
The proposed regulations issued in July 2022 will strengthen protections for LGBTQI+ students by clarifying Title IX’s scope to include discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics. By acknowledging that discrimination based on sex characteristics (for example, genitals and hormone function) is inherently sex-based and thus prohibited, the proposed rules protect intersex students.
Section 106.31(a)(2) includes the language and concept that has yielded the most public comments thus far. It says:
“In the limited circumstances in which Title IX or this part 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 discriminates on the basis of sex by subjecting a person to more than de minimis harm, unless otherwise permitted by Title IX or this part. Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.”
What does this mean? It means outside of permitted sex-separate programs or rules (such as admission to single-sex colleges), schools must not separate the sexes or treat them differently in a way that causes more than a trivial harm. The preamble refers to 34 CFR 106.33, which permits sex-separate (but comparable) toilet, locker room, and shower facilities, as an example of separations or distinctions that do not cause harm. And then the Department gives an example of a separation or distinction that does cause more than trivial harm: preventing someone from participating consistent with their gender identity. Under these proposed rules, sex-separate facilities are permitted, and individuals must have access to such facilities consistent with their gender identity.
Where does that leave us? These rules are only proposed for now, but we can anticipate pushback on this section, including from states where the law prohibits consistency with gender identity in favor of “sex assigned at birth.”
The Department offered that specific rules regarding sex-separate athletics will be forthcoming; those rules will be subject to the same notice and comment process as the July 2022 proposed rules. These yet-to-be-released proposed rules should provide clarity on the permissible criteria to determine students’ eligibility to participate on a particular sex-separate team.
Still, the proposed rules and the discussion in the preamble were not explicit or detailed about the rights here. Restrooms and changing rooms were only mentioned in passing while quoting an existing regulation that permits sex separation in those contexts. Pronouns and names were not mentioned at all, although it’s expected that the preamble to the final rules will address considerations about how misnaming and misgendering someone contributes to a hostile environment.
The 2016 Dear Colleague Letter on Transgender Students (rescinded) did address pronoun usage. The document stated, “Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.” We are hopeful that more specific guidance, similar to what was previously issued in the 2016 Dear Colleague Letter, addressing pronouns and the usage of chosen names will be forthcoming. Please note that courts have not accepted the premise that misgendering someone creates a hostile environment, and the freedoms of speech and religion intersect with Title IX here in ways that will complicate compliance for schools.
¹ The U.S. Department of Education writes in Footnote 4 of the proposed regulations that it “generally uses the term ‘LGBTQI+’ to refer to students who are lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, or describe their sex characteristics, sexual orientation, or gender identity in another similar way. When referring to some outside resources or past OCR guidance documents, th[e] preamble also uses variations of this acronym to track the content of those documents, as appropriate.”