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As we previously reported, on June 17, 2019, three cisgender female student-athletes filed a complaint with the U.S. Department of Education’s Office for Civil Rights (“OCR”) concerning the Connecticut Interscholastic Athletic Conference’s (“CIAC”) rules regarding the participation of transgender students in interscholastic athletic competitions. CIAC policy, consistent with Connecticut state law, allowed transgender students to participate in sports based on their gender identity, without documentation of medical intervention. Specifically, the cisgender female student-athletes alleged that the CIAC policy deprived female student-athletes of their right to participate in sports, placed them at a competitive disadvantage compared to their biological male peers, and impacted their chances of earning college scholarships, in violation of Title IX.

On May 15, 2020, OCR issued a 45-page Letter of Impending Enforcement Action, determining that CIAC’s transgender policy violated Title IX by “discriminating against female student-athletes competing in interscholastic girls’ track in the state of Connecticut on the basis of their sex.” Specifically, OCR found that CIAC’s policy, by permitting the participation of certain male student-athletes in girls’ interscholastic track, denied female student-athletes opportunities that male student-athletes had of competing on a level playing field. This violation resulted in a loss of athletic benefits and opportunities for female student-athletes, such as “advancing to the finals in events, higher level competitions, awards, recognition, and the possibility of greater visibility to colleges and other benefits.”

While OCR attempted to minimize the impact of its decision to CIAC and the particular facts surrounding girls’ track activities, this decision may have far-reaching national legal implications. For example, the Illinois Elementary School Association (“IESA”) and Illinois High School Association (“IHSA”) also allow transgender students to participate in interscholastic athletic activities and competitions. Based on this OCR decision, the IESA/IHSA and Illinois school districts may start seeing an increase in OCR complaints and lawsuits filed by cisgender students alleging Title IX violations. On the other hand, if the IESA/IHSA change their policies to be consistent with the OCR decision, they likely will be sued by transgender students.

We will continue to monitor the development of this case, including the separate federal lawsuit, and the impact it may have on the participation of transgender students in interscholastic athletic activities and competitions in Illinois. Another related case we are monitoring is a federal lawsuit in Idaho, where the Trump Administration filed a “statement of interest” supporting an Idaho law that bars transgender females from participating on girls’ or women’s school athletic teams, arguing that biological males who identify as transgender are seeking special treatment in violation of the Equal Protection clause of the U.S. Constitution. And while the recent United States Supreme Court decision holding that Title VII protects gay and transgender employees (see our article here) may be instructive, ultimately, we will have to see how courts now interpret Title IX and the Equal Protection clause in cases involving transgender students.

If you have questions regarding accommodations for and participation of transgender students in your school, please contact an attorney in our Students/Special Education practice group.

Source: OCR Letter of Impending Enforcement Action, May 15, 2020