May 15, 2017

Title IX at 45: The Evolution and Impact on LGBTQ+ Rights

Nathan R. Cordle

This year, we celebrate 45 years of Title IX. At its inception in 1972, Title IX prohibited sex discrimination in any educational activity receiving federal financial support, including athletics. A few years later, federal regulations were issued, giving high schools and colleges guidance on how to implement the new law. All high schools and colleges that received federal aid were given three years to comply.

Even with the new law in place, women continued to face discrimination and backlash as a result of the new regulations. The NCAA and high schools across the country argued that boys’ sports would suffer as a result of equally funding girls’ sports. Then, in 1984, the Supreme Court stated in Grove City College v. Bell that Title IX affected only those programs that directly received federal financial assistance, such as federal financial aid to students. This ruling effectively eliminated Title IX’s application as to athletics, extracurricular programs, and other educational activities. However, the victory for Title IX opponents was short-lived.

In 1988, Congress enacted the Civil Rights Restoration Act of 1987, which redefined “program or activity” in the language of Title IX to include “a college, university, or postsecondary institution, or a public system of higher education . . . any part of which is extended Federal financial assistance.” Essentially, the Act reversed the effect of Grove City College, and clarified that entire institutions are covered by Title IX if any program or activity within the institution receives federal aid. In February of 1992, the Supreme Court held in Franklin v. Gwinnett County Public Schools that victims of discrimination under Title IX could be awarded monetary damages. This effectively provided “teeth” to the enforcement of Title IX.

The Evolution of Title IX

Title IX started as an Act designed to eliminate gender discrimination in athletics and educational programs and activities. However, over time it has evolved into a more powerful tool used to combat other forms of discrimination, harassment, and violence. In 1997, the Department of Education issued its Sexual Harassment Guidance under Title IX. This guidance declared that sexual harassment was a form of sex discrimination prohibited by the Act. The guidance further clarified that Title IX “protects students in connection with all of the academic, educational, extra-curricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere,” and the Act protects any “person” from sex discrimination, including both males and females, regardless of the gender of the harasser.

In 2001, the Department of Education reaffirmed the sexual harassment standards under Title IX from its 1997 position, and clarified remedies available to claimants as a result of decisions from the Supreme Court. Also, the department addressed harassment predicated on sex-stereotyping. While it refused to expand the scope of the guidance to include harassment based on sex-stereotyping, the department said that such harassment is covered by Title IX if it is “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the program.” Thus, it can be discrimination on the basis of sex to harass a student on the basis of the victim’s failure to conform to stereotyped notions of masculinity and femininity.

In 2011, the Department of Education issued a Dear Colleague letter, which is a letter of guidance from the department announcing a change in enforcement, evaluation, and implementation of policies and procedures, especially as it relates to whether covered entities are complying with their legal obligations in order to continue receiving federal financial assistance. The policy shift enlarged the scope of Title IX to include protections against sexual harassment and sexual violence as applicable to all students, not just athletics and those students who participate in school programs. The new policy shift led to the creation of Title IX offices at colleges and universities across the country. These offices were established for the purposes of reporting and investigating sexual assault and harassment claims from students.

Impact on the LGBTQ+ Community

Under the Obama administration, Title IX saw progressive evolution. In 2015, the Department of Education’s Office of Civil Rights responded to an inquiry regarding transgender students’ access to facilities such as restrooms. In the response, the department reaffirmed their policy of “prohibiting recipients of federal financial assistance from discriminating on the basis of sex, including gender identity and failure to conform to stereotypical notions of masculinity or femininity.” The letter further clarified that “regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances.” However, the department stated a school that does so must treat transgender students consistent with their gender identity.

In 2015, a 17-year-old student in Virginia challenged a school’s gender-identity bathroom policy in federal district court in Virginia. Gavin Grimm, who was born a female but now identifies as a male, alleged that the school’s bathroom policy violated both the Constitution’s guarantee of equal protection under the laws, and Title IX. The lower court initially declined to hear his case based on a 1975 regulation that allowed schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. The Fourth Circuit Court of Appeals reversed that decision, citing the 2015 letter from the department, and stated while the argument is novel, the department’s interpretation is entitled to deference so long as the interpretation is neither ambiguous nor plainly erroneous, and is the result of the agency’s “fair and considered judgment.” The court reasoned that the interpretation was not ambiguous because it resolves the ambiguity of how to define the “sex” of a transgender student, and was not plainly erroneous because it was in line with the interpretation of several federal agencies. The Fourth Circuit declined to stay its ruling, and issued a preliminary injunction allowing Grimm to use the boys’ restroom while the case was being litigated in federal court. The school board then appealed the matter to the Supreme Court, and the Fourth Circuit’s mandate was stayed pending the Supreme Court’s decision.

In conjunction with the Civil Rights Division of the Department of Justice, the Department of Education issued another Dear Colleague letter in 2016. This time, the department expanded its interpretation of Title IX to include “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” The letter went on to state that both departments “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” which means that a school “must not treat a transgender student differently from the way it treats other students of the same gender identity.” Under this letter, a medical diagnosis or treatment was not required as a prerequisite to being treating consistently with their gender identity.

The 2016 Dear Colleague letter gave hope to Grimm’s case before the Supreme Court, and gave hope to LGBTQ+ rights advocates nationwide. However, in February 2017, under the new Donald Trump administration, the Departments of Education and Justice effectively revoked the Obama-era guidance on Title IX, which was relied upon by the lower court in Grimm’s case. In March, the Supreme Court vacated the Fourth Circuit’s decision, and remanded it back for further proceedings in light of the new administration’s interpretations. The Fourth Circuit has since remanded the case back to federal district court to determine if Grimm’s case is moot since he recently graduated from the local high school, and is no longer a student.

The Future of LGBTQ+ Rights under Title IX

Prior to the February 2017 letter and the Supreme Court’s decision to vacate the Fourth Circuit’s ruling and remand it back to the lower court, there was hope that Grimm’s case would be another landmark civil rights case for the LGBTQ+ community, much like the 2015 Obergefell decision. It appears that the Trump administration will not prioritize the issue of LGBTQ+ rights, especially as they relate to Title IX. The federal district court in Grimm’s case now has the power to decide whether Grimm’s case should proceed in the federal court system. It could potentially apply the “capable of repetition yet evading review” standard. This would essentially mean that, although Grimm graduated, there will be similarly situated plaintiffs in the future, and the passage of time, along with the effect of graduation, could potentially render some of those claims non-justiciable unless an exception to the mootness doctrine existed.

In the future, the gender identity and gender stereotyping arguments are the two strongest tools for the enhancement of LGBTQ+ rights under Title IX. Of course, such progress depends largely upon the mercy and make-up of the court system, especially the Supreme Court, and the party holding a majority of power in Congress and in the White House. While the evolution of Title IX has been steady, especially within the last several years, the future is unfortunately unclear.

Nathan R. Cordle

Nathan R. Cordle is an attorney with Clark Partington, a regional law firm with offices in Alabama and Florida.