April 12, 2023
On April 6, 2023, the U.S. Supreme Court and the U.S. Department of Education addressed the treatment of transgender students in sports.
Specifically, in West Virginia, et al. v. B.P.J., by her next friend and mother, Heather Jackson, No. 22A800, 598 U.S. ___ (2023), the U.S. Supreme Court declined to vacate the U.S. Court of Appeals for the Fourth Circuit’s injunction, enjoining the enforcement of a West Virginia law that restricts participation in women’s sports based on an athlete’s genes or physiological or anatomical characteristics. Separately, the U.S. Department of Education issued a notice of proposed rulemaking on athletic eligibility under Title IX, which prohibits schools from implementing a categorical ban on transgender students participating on sports teams consistent with their gender identity.
These actions provide insight into legal trends regarding transgender athletes as schools shape their policies in this still-evolving area of law. However, there remain several questions for schools on how they should properly craft their policies. Below are some questions schools may be asking in light of these new developments.
1. What does the Supreme Court’s ruling in Jackson mean for school districts and their sports policies?
The underlying cases in Jackson concern the issue of whether Title IX of the Education Amendments of 1972 or the Fourteenth Amendment’s equal protection clause allows a school to prohibit a transgender girl from participating on a middle-school sports team.
In April 2021, West Virginia enacted the Save Women’s Sports Act, which separated school athletic teams according to biological sex. As a result of this law, a transgender minor could not participate in the middle school’s girls’ cross-country and track teams. The student filed suit, seeking to enjoin the application of the law and initially seeking a preliminary injunction for an opportunity to compete on the middle school’s girls’ cross-country team while the case was pending.
The U.S. District Court for the Southern District of West Virginia initially granted the preliminary injunction, allowing the student to continue playing on the athletic teams consistent with gender identity. However, on Jan. 5, 2023, the district court held that the Save Women’s Sports Act is lawful and dissolved the preliminary injunction. The student appealed the court’s judgment to the U.S. Court of Appeals for the Fourth Circuit, where the case remains pending.
In the meantime, the student sought an order to continue playing pending the appeal. On Feb. 7, 2023, the district court refused to stay its judgment or grant the injunction pending appeal, which meant the student could not continue playing on the girls’ cross-country and track teams. The student renewed the request with the Fourth Circuit and that court granted an injunction pending appeal.
On appeal of the district court’s refusal of the stay pending appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s ruling and stayed the district court’s order dissolving the preliminary injunction. In Jackson, the U.S. Supreme Court denied West Virginia’s application to vacate the injunction, meaning that Pepper-Jackson would be allowed to participate in girls’ cross country and track this spring.
Justice Samuel Alito, joined by Justice Clarence Thomas, dissented because the factors applicable to stays weighed in favor of West Virginia’s dissolution of the preliminary injunction that allowed Pepper-Jackson to keep playing on the girls’ team.
2. What have courts said to date about transgender students?
The court’s decision in Jackson comes on the heels of a split between the U.S. Court of Appeals for the Fourth Circuit and U.S. Court of Appeals for the Eleventh Circuit regarding the treatment of transgender students in schools.
In Gavin Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), the Fourth Circuit held that the equal protection clause and Title IX protect transgender students from school bathroom policies that prohibit them from selecting a restroom based on their gender identity. The court held that Gloucester County School Board’s policy violated the equal protection clause because it constituted sex discrimination, as applied to the transgender student in this case.
The court explained that the policy constituted sex discrimination because it was not supported by an exceedingly persuasive justification — i.e., it was not substantially related to the declared underlying interest of protecting students’ privacy. According to the court, the policy revealed a bias that privileged the sex one is assigned at birth over a student’s consistent and persistent gender identification. Similarly, the court held that the application of the restroom policy violated Title IX because excluding this student from using the boys’ restrooms constitutes discrimination on the basis of sex.
In sharp contrast, in Drew Adams, by and through Erica Adams Kasper v. School Board of St. Johns County, Tim Forson, et al., 57 F.4th 791 (11th Cir. 2022), the Eleventh Circuit came to the opposite conclusion. As in Grimm, the plaintiff in Adams challenged a school board’s policy that precluded a transgender boy from using the boys’ restrooms. The Eleventh Circuit held the policy did not violate either the equal protection clause or Title IX. The court determined that the policy advanced the important governmental objective of protecting students’ privacy in a manner that is substantially related to the objective. Similarly, the court held that the policy did not violate Title IX because the term “sex” in Title IX meant biological sex, and the implementing regulations of Title IX expressly permitted separating the sexes when it comes to the provision of bathroom and other living facilities.
The Grimm and Adams decisions reflect the evolving state of the law on these issues. These cases also demonstrate that it is important for schools to clearly identify the purpose of their sex-based policies and to be conscious of the practical impact of those policies on all students, including transgender students.
3. What does Jackson mean for educational institutions?
The Supreme Court’s refusal to vacate an injunction pending appeal in Jackson does not resolve the merits of the student’s appeal. Even the lower court’s ruling likely affects only the specific plaintiff and school district involved in the case. But the case serves as an important reminder for all educational institutions to carefully consider their policies affecting transgender students and track the evolution of state and federal laws on these issues. Schools should note that some states have enacted bans, while other legislatures are debating prohibitions, and other courts are considering pending cases.
Justice Alito foreshadowed in Jackson that whether Title IX of or the Fourteenth Amendment’s equal protection clause prohibits a state “from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics” will be an important issue that the Supreme Court “is likely to be required to address in the near future” — potentially in Jackson itself after the Fourth Circuit resolves the pending appeal.
4. What guidance has the U.S. Department of Education provided regarding transgender athletes?
Separately, on April 6, 2023, the U.S. Department of Education issued a notice of proposed rulemaking on athletic eligibility under Title IX, which proposed express recognition that it is a violation of Title IX to impose any categorical ban that prohibits transgender athletes from participating on sports teams consistent with their gender identity. The proposed rulemaking comes in response to inquiries from various schools, athletic associations, parents and students seeking clarity on how schools can meet Title IX’s nondiscrimination requirement with respect to transgender student-athletes.
The new proposed regulations would add (b)(2) to the current regulation 34 C.F.R. 106.41, such that this regulation would state:
§ 106.41 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
(b) Separate teams.
(1) Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
(2) If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
. . . .
The proposed regulations, if implemented, would prohibit a policy that requires all students to participate on a sports team based on their biological sex. The proposed rules, however, give schools flexibility to develop team eligibility criteria that serve important educational objectives, including ensuring fairness in competition or preventing sports-related injury. When schools develop team eligibility criteria, the proposed regulations would require any criteria “to minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” Accordingly, the criteria must account for:
To illustrate, the U.S. Department of Education’s Office for Civil Rights (OCR) stated that it expects elementary school students generally would be able to participate on athletic teams consistent with their gender identity because elementary schools offer sports to teach teamwork, leadership, fitness and basic athletic skills. On the other hand, OCR expects that sex‑related criteria limiting transgender students’ participation in athletic teams at the high school and college levels may be permissible because athletic programs at these levels are more focused on competitive success. Additionally, the type of sport is a relevant consideration when developing sex-related criteria. For example, OCR recognized that the National Collegiate Athletic Association recently adopted a sport-specific approach for eligibility criteria for male and female teams in college-level competitive leagues.
5. Didn’t the U.S. Department of Education already expand Title IX to protect transgender individuals?
On June 22, 2021, the U.S. Department of Education issued an interpretation, expressly stating that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. 86 Fed. Reg. 17. The U.S. Department of Education has thus clarified that “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
This interpretation has been the subject of litigation. In State of Tennessee, et al. v. U.S. Department of Education, No. 3:21-cv-308, 2022 WL 2791450, *24 (E.D. Tenn. July 15, 2022), the U.S. District Court for the Eastern District of Tennessee preliminarily enjoined and restrained the U.S. Department of Education from implementing the June 22, 2021, interpretation in several states:
On July 12, 2022, while the case regarding the U.S. Department of Education’s interpretation was pending, the Department issued a notice of proposed rulemaking, seeking among other things to clarify that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. The period to comment on the proposed rules closed Sept. 12, 2022.
6. When will any of the proposed Title IX regulations go into effect?
The Department’s regulatory agenda indicates that it may issue Title IX final regulations, defining sex discrimination to include discrimination on the basis of gender identity and sexual orientation, as early as May 2023. The Department has not yet clarified the effective date of the new regulations, but it is likely that schools will have to implement them for the 2023-2024 academic year.
Meanwhile, the Department’s proposed Title IX regulation as to athletic eligibility under Title IX was published in the Federal Register on April 13, 2023, and public comments are due on or before May 15, 2023.
7. What should schools do now?
Schools should be aware of state and federal laws in their jurisdiction, which sometimes may conflict on issues concerning transgender students, and carefully weigh all interests in this evolving area of law. Schools should have counsel review their policies affecting all students, including transgender students, with respect to intimate facilities, including restrooms, locker rooms and door rooms, as well as athletics. McGuireWoods’ education industry team continues to track developments in this evolving area. Please contact any of the authors of this article if you have any questions about your policy.