In response to a complaint filed by three cisgender female athletes last year, the U.S. Department of Education's (the Department) Office for Civil Rights (OCR) initiated an investigation into several Connecticut public school districts to determine whether the Connecticut Interscholastic Athletic Conference's (CIAC) policy allowing transgender females to compete as females in high school sports (the Policy) violates the civil rights of cisgender female athletes covered by Title IX. As a result of the investigation OCR issued its determination that the Policy violated Title IX in a 45-page Letter of Impending Enforcement Action (the Letter) that also touches upon the potential ramifications for the Connecticut public school districts if they fail to resolve the identified Title IX violations.
The Letter explains that OCR determined that the Policy violates Title IX because it "denied female student-athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits." CIAC and the Connecticut public school districts defended the Policy, arguing that it complies with a Connecticut state law barring schools from discriminating against transgender students and preventing transgender students from being deprived of the meaningful opportunity to participate in educational activities—entitlements provided for under Title IX. In response, the Letter explains that "OCR takes no view on the requirements of Connecticut law except to note that the duty to comply with Title IX and its implementing regulation is independent of any such requirements" and such duty "is not obviated or alleviated by any rule or regulation of the CIAC."
The Department's decision is not just limited to Connecticut; it could have national legal implications. Connecticut is one of 18 states, along with Washington, DC, that allows transgender athletes to compete with members of their shared identity without restrictions. In contrast, some states have laws banning transgender female athletes from participating in female sports. The Letter provides insight into OCR's plan for addressing both approaches.
Notably, this is the first decision from the Department addressing the question of whether transgender females deprive cisgender females of opportunities consistent with Title IX when they compete on the same field, and the debate surrounding this question is unlikely to end with this decision. Instead, the future of the Department's opinion is in flux. The Department gave the Connecticut public school districts 20 days to resolve the Title IX violation and warned that the next step would be to suspend, terminate, or refuse to grant federal funding, or to refer the cases to the U.S. Department of Justice for judicial proceedings to enforce any rights of the United States. In addition to the complaint brought before OCR, the complainants also filed a federal lawsuit, currently pending before the U.S. District Court for the District of Connecticut, which may result in a judicial outcome that differs from OCR's determination. Furthermore, given the controversy surrounding the matter, LGBTQ advocacy groups and other civil rights organizations will likely challenge OCR's determination in other jurisdictions. These impending lawsuits will likely shape the scope and application of OCR's opinion.
Venable will continue to monitor the development of litigation challenging OCR's decision, and litigation challenging policies regulating Title IX's application to transgender students. In the meantime, educational institutions subject to Title IX should review the laws of their state, athletic associations' policies, and this new agency decision, and consider whether they impact their current policies.
Educational institutions seeking guidance on Title IX policies or procedures, litigation risks, or any other questions should contact Doreen Martin at dsmartin@Venable.com, Michael Volpe at mjvolpe@Venable.com, Allison Gotfried at abgotfried@Venable.com, Sarah Fucci at safucci@Venable.com, or any other member of Venable's Higher Education or Labor and Employment groups.