Update: OCR Affirms Its Position Requiring Transgender Students to Play on Athletic Teams of their Biological Sex at Birth

As we previously reported, on May 15, 2020, the U.S. Department of Education Office for Civil Rights (“OCR”) issued a 45-page Letter of Impending Enforcement Action concerning the Connecticut Interscholastic Athletic Conference’s the Conference’s policy regarding the participation of transgender students in interscholastic athletic competitions. OCR determined that the Conference’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 the Conference’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.”

On August 31, 2020, OCR decided to issue a Revised Letter of Impending Enforcement Action to make clear its position that the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Georgia, which was based on Title VII, does not extend to Title IX. (See our article on the Bostock case here.) In the Revised Letter, OCR stated that the Bostock decision “does not affect its position that [the Title IX] regulations authorize single-sex teams based only on biological sex at birth—male or female—as opposed to a person’s gender identity.” The Revised Letter goes on to note that the Supreme Court’s “ruling is based on the ‘assumption’ that sex is defined by reference to biological sex, and its ruling in fact rests on that assumption.” Instead, OCR maintains that Title IX regulations authorize single-sex teams only based on biological sex at birth and not a person’s gender identity.

Participation in athletics is one of the more complex issues related to transgender students’ rights, and given that OCR’s position appears to directly conflict with the Supreme Court’s decision in Bostock, which held that Title VII’s prohibitions on sex discrimination protect transgender employees, we expect that this issue will not be settled until the Supreme Court decides the issue.

We will continue to monitor the developments in this OCR matter, as well as the separate federal lawsuit filed  by the three cisgender female student-athletes alleging that the Conference policy violates Title IX. It still is pending in federal district court in Connecticut. We also will monitor the impact these matters may have on the participation of transgender students in interscholastic athletic activities and competitions in Illinois. Also see our recent reporting on two federal appeals court decisions regarding the rights of transgender students here.

In a recent development, one of the school districts, New Haven Public Schools, reportedly reached a tentative agreement with OCR. More information is available in this news report.

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.

Sources: OCR Revised Letter of Impending Enforcement Action, August 31, 2020

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