By Beth Morris and Lexi Trumble, Parker Poe
When the Department of Education (DOE) released its long-awaited 2024 final rule clarifying Title IX’s scope and application in April, education stakeholders were left wondering how to interpret and implement the regulations’ codified protections for LGBTQ+ individuals and the maintenance of sex-separate facilities.
The final rule is comprised of 1,577 pages of preamble explanation and regulatory text. Through careful analysis of those pages, one can ascertain the DOE’s stance on what has become one of the rule’s most contentious topics: the rights of transgender students to participate in education programs and activities free from sex discrimination, including their access to bathrooms, locker rooms, and shower facilities.
Title IX has, for decades, permitted separating certain facilities by sex. However, the 2024 regulations clarify this administration’s position that when such separation causes “more than de minimis harm,” such as when it denies transgender individuals access to a facility or activity consistent with their gender identity, such separation violates impacted individuals’ civil rights.
As with any lengthy and complex rule, interpretation and implementation of the 2024 final rule is nuanced and rife with political and social implications.
Statutory and Regulatory Exceptions to Title IX’s Nondiscrimination Mandate
Title IX’s text is only 37 words long; it does not discuss bathrooms, athletics participation, sexual assault, access to STEM programs, or transgender students. The color and substance of Title IX comes from its implementing regulations and from decades of legal guidance from the DOE. Its overarching purpose is to prevent discrimination on the basis of sex in federally-funded education programs.
The Title IX statute contains several exceptions to that core nondiscrimination mandate. A full list of those statutory exceptions can be found in the language of the statute, but they include exceptions for religious institutions, military academies, fraternity and sorority membership, and “traditional and continuing” single-sex admissions policies, among other exceptions. The statute also explicitly states that Title IX does not prevent any school “from maintaining separate living facilities for the different sexes.” This exception is commonly referred to as the “living facilities” exception and its brevity has become the subject of much debate (and subsequent regulatory clarification). Indeed, Title IX’s implementing regulations confirm that institutions may provide separate housing on the basis of sex as long as those housing facilities are comparable in quality.
Congress also recognized that the unique circumstances of athletics also merit a different approach, which resulted in the DOE’s promulgation of athletics-specific regulations (which the 2024 final rule does not alter). The DOE, in crafting its 2024 rule, interpreted the exceptions detailed above to mean that, in those contexts (statutory exceptions 1-9, living facilities, and athletics), education institutions may carry out sex-specific policies and practices in a manner that may cause more than de minimis harm to a protected individual.
Title IX Final Rule’ Highlights Department of Education’s Position
The 2024 Title IX final rule includes two provisions which have served as the basis for much public and political discourse and have led 26 states to seek and receive preliminary injunctions blocking enforcement as the 2024-2025 academic year gets underway. The first, 34 C.F.R. § 106.10, clarifies Title IX’s scope:
“Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The second, 34 C.F.R. § 106.31(a)(2), introduces a new standard for determining whether a school’s policies or procedures violate an individual’s civil rights under Title IX:
“Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.”
This new standard — “more than de minimis harm” — has been criticized as ambiguous, but its definition is well-settled in case law. In the rule’s preamble, the DOE clarifies that for such harm to be actionable under Title IX, it must be a “legally cognizable injury,” or “something more than innocuous.” The DOE explains that “Harm under § 106.31(a)(2) must be genuine and objectively non-trivial and assessed from the perspective of a reasonable person in the individual’s position.”
Battleground: Bathrooms
The DOE acknowledged that sex separation in certain circumstances, including in the context of bathrooms or locker rooms, is not presumptively unlawful sex discrimination. However, when such separation imposes more than de minimis injury on a protected individual, such as when it denies a transgender student access to a sex-separate facility or activity consistent with their gender identity, the DOE opines that such separation violates Title IX’s nondiscrimination mandate.
The DOE contends that the living facilities exception does not apply to bathrooms, locker rooms, or shower facilities.[1] It takes the position that bathrooms and locker rooms are governed not by the “living facilities” carve-out, but by the statute’s general nondiscrimination mandate. As a result, bathrooms, locker rooms, and shower facilities would be subject to the “more than de minimis harm” standard provided above, and refusing to permit transgender students to access facilities in accordance with their gender identity would violate those students’ civil rights.
The 2024 final rule’s prohibition on preventing students from participating consistent with their gender identity, then, applies to any permissible sex separation or differentiation, except when more than de minimis harm is permitted by the Title IX statute (in the case of the nine statutory exceptions, living facilities, or athletics).
What this means for schools is that showers, locker rooms, and bathrooms must be administered in a way that does not cause more than de minimis harm to those who wish to access them. In other words, schools and other educational facilities can have separate boys’ and girls’ bathrooms. The construction of such facilities is allowable under Title IX. Schools must, however, permit access to those facilities in a manner that comports with an individual’s gender identity instead of relying purely on sex assigned at birth.
In this complicated legal landscape, schools should consider whether they are subject to state-level bathroom laws that might impact facilities access on their campuses. Administrators should also consult outside legal counsel when it comes to the latest updates on the Title IX rule (including preliminary injunctions).
Ascertaining Gender Identity
Before and since the Title IX final rule was issued, education stakeholders questioned how to determine a person’s gender identity. The DOE explained that it is aware that schools often rely on a student’s “consistent assertion” to determine their gender identity. Schools might also rely on written confirmation of the student’s gender identity by the student or the student’s parent, counselor, coach, or teacher.
The DOE, however, cautioned that requiring a student to submit to what it describes as “invasive medical inquiries or burdensome documentation requirements” to participate in an institution’s education program or activity consistent with their gender identity imposes more than de minimis harm and would, therefore, violate Title IX.
Education institutions should not, for example, require a student to provide an amended birth certificate or evidence of medical treatment to validate gender identity.
Next Steps for Schools
The final rule leaves schools with plenty to digest when it comes to providing access to facilities like showers, locker rooms, and bathrooms in compliance with Title IX. Practical recommendations for schools attempting to implement the 2024 final rule (those not subject to injunctions) include:
- Reviewing and updating your policies and procedures to ensure that they are consistent with the final rule and the DOE’s guidance. Communicate your policies and procedures to students, staff, and parents, and provide regular training and education on Title IX and the final rule.
- Designating a Title IX coordinator who is responsible for overseeing and coordinating your institution’s Title IX compliance. Ensure that the coordinator is trained on the updated Title IX regulations if applicable in your jurisdiction, including addressing the needs of LGBTQ+ individuals, and that the coordinator is accessible and responsive to any inquiries or concerns from students, staff, or parents.
- Providing supportive measures and remedies to LGBTQ+ students who experience or report sex discrimination, harassment, or violence. Respond promptly and effectively to any allegations or incidents of sex discrimination, harassment, or violence involving LGBTQ+ students, and conduct a fair and impartial investigation and adjudication process.
- Avoiding requiring students to submit burdensome documentation or answer to medical inquiries to ascertain their gender identity.
- Considering the feasibility of converting existing facilities, like a staff bathroom, into a gender neutral or all gender bathroom. Importantly, the Title IX final rule does not require schools to construct new gender neutral or all gender bathrooms “because such facilities are not the only way an education institution could provide nondiscriminatory access to its facilities.”
[1] An education institution can exclude students from sex-separate housing consistent with their gender identity because of the express carve-out for sex-separate living facilities. However, the DOE contends that education institutions can voluntarily adopt policies that enable transgender students to access sex-separate housing consistent with their gender identity.
