Over the last few years, schools have seen ongoing changes in the federal government’s expectations for the accommodation of transgender students. During the Obama administration, the U.S. Department of Education (“USDOE”) put out guidance interpreting Title IX to protect against discrimination based on gender identity. The Trump administration repealed that guidance. In June 2022, the Biden administration attempted to reinstate the guidance. Meanwhile, courts across the country have been weighing in on protections for transgender students. Now, the State Board of Education in Ohio has joined the debate.
Below is a discussion of where exactly the law stands on the accommodation of transgender students, and what has, or has not, changed in the last few months.
Title IX: Title IX is the federal law that prohibits discrimination on the basis of sex in schools. It applies to students, employees, contractors, and others who are participating in or attempting to access the school’s programs. In recent years, USDOE, courts, and states have tried to define “sex” in different ways for the purpose of Title IX enforcement. Schools that violate Title IX risk the loss of federal funding.
14th Amendment: The 14th Amendment to the U.S. Constitution guarantees everyone “equal protection of the laws.”
In 2016, USDOE issued guidance indicating the agency would interpret Title IX to prohibit discrimination on the basis of gender identity. This guidance required schools to treat any transgender student the same as other students based on the gender with which they identify. That meant allowing transgender students to use the restrooms and locker rooms of the genders with which they identify, and to participate in single-sex activities on the same basis.
In 2017, USDOE rescinded its 2016 guidance but indicated transgender students were still protected from harassment and bullying under Title IX.
Then, in 2021, USDOE issued a notice that it would again interpret Title IX to prohibit discrimination based on sexual orientation or gender identity. In June 2022, a federal court in Tennessee ruled that USDOE could not enforce that interpretation yet because the agency had not followed the required rulemaking process. USDOE then issued proposed changes to Title IX regulations, which have now gone through the public comment period and are undergoing revisions prior to finalization.
Courts across the country have examined questions regarding the accommodation of transgender students. These questions arise under Title IX itself, the Title IX guidance documents discussed above, and the 14th Amendment. Neither Title IX itself nor the 14th Amendment have changed in recent years. Thus, any court decisions based on the language of Title IX and/or the language of the 14th Amendment stand regardless of the USDOE’s then-current guidance.
For the purposes of Ohio schools, there are two key court decisions to be aware of:
- Dodds v. U.S. Dep’t of Education: Dodds was decided by the 6th Circuit Court of Appeals in 2016 and required schools to accommodate transgender students, including by permitting them to use the facilities of the gender with which they identify. The Court wrote, “Under settled law in this Circuit, gender nonconformity . . . is an individual’s failure to act and/or identify with his or her gender. Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” This decision was not based on the then-current USDOE guidance document and therefore is not impacted by any subsequent changes to that guidance. The 6th Circuit is the appeals court that sits over Ohio, so all of its decisions are binding in this state.
- Grimm v. Gloucester County School Board: Grimm was decided by the 4th Circuit Court of Appeals, which, like the 6th Circuit in Dodds, held that schools are required to accommodate transgender students, including by allowing them to use the facilities of the gender with which they identify. The reason Grimm matters in Ohio is because in 2020, the U.S. Supreme Court let stand the 4th Circuit’s decision. The Supreme Court declined to review the Grimm case and did so after first ruling that the term “sex” included gender identity for the purposes of Title VII, another federal anti-discrimination statute. This signaled the Supreme Court’s view, at least at the time, that Title IX might also include gender identity in its definition of “sex.” The version of the Grimm case that the Supreme Court allowed to stand was also based on the language of Title IX and the 14th Amendment, not USDOE guidance, and so is also not impacted by changes in the guidance.
Status of Federal Law
All of this is to say that, at least in Ohio, the interpretation of Title IX has not changed since December 2016, when the 6th Circuit issued its decision in Dodds. Although changes in USDOE guidance and court decisions regarding that guidance have made it seem as though the law is constantly shifting in this area, Ohioans have had consistent direction for many years.
State Board of Education Resolution
In December 2022, the State Board of Education (“State BOE”) voted to approve a resolution opposing the 2021 USDOE Title IX guidance. In that resolution, the State BOE also ordered the Ohio Department of Education (“ODE”) to notify schools of the State BOE’s action, notify schools that the State BOE views the 2021 USDOE guidance to be unenforceable, and inform districts that the Ohio Attorney General has joined a group of state attorneys general in litigating against the 2021 USDOE guidance. A prior version of the resolution, which did not pass, would have urged Ohio school districts to resist interpretations of Title IX protecting transgender students and would have encouraged the state legislature to prepare to replace with state funds any federal funds districts lost as a result of refusing to comply with Title IX.
Following the passage of this resolution, Ohio school districts should consider the following:
- The State BOE resolution does not actually order districts to do anything, nor does it prohibit districts from doing anything.
- The 2021 USDOE guidance is not enforceable right now due to a nationwide injunction issued by a federal court in Tennessee. Therefore, the guidance cannot be enforced against a district regardless of the State BOE’s position on it.
- State law cannot supersede federal law. Federal law, whether it be Title IX or the Constitution itself, always controls over contradictory state laws. Federal law on this issue is clear, independent of the 2021 USDOE guidance. Under 6th Circuit law, schools in Ohio are required to accommodate transgender students. Failure to do so would be a violation of Title IX in this circuit and could jeopardize a district’s federal funding.
- In total, Ohio school districts receive almost $4.5 billion in federal funds. Even if the General Assembly had accepted the State BOE’s invitation to try to make up for the loss in federal funding for districts that do not comply with Title IX, the state budget could not sustain that type of commitment.
The Title IX rules that apply to Ohio school districts have not changed since December 2016. Districts are encouraged to consult with legal counsel before taking any action based on the State BOE resolution.
Emily R. Spivack is a senior associate at Squire Patton Boggs (US) LLP, an OASBO Platinum Sponsor. She can be reached at 216.479.8001 or email@example.com.