Ryan Haynie & Kimberly M. Richey | April 19, 2022
Oklahoma’s confusing bathroom policy: context and legal background
Ryan Haynie & Kimberly M. Richey
Stillwater Public Schools has been in the news recently for a policy that permits students to use restrooms based on their gender identity. Despite the fact that this policy has likely been in place for several years, parents are understandably concerned about its implications.
On March 31, 2022, Stillwater Public School’s Interim Superintendent Gay Washington sent a letter to Stillwater parents explaining that the policy was necessary to avoid and prevent discrimination under Title IX of the Education Amendments of 1972. Coverage of the letter to parents has been widely reported.
Superintendent Washington’s letter explains, in relevant part, that the policy is necessary to ensure compliance with federal civil rights laws. Specifically, the letter states:
Currently, SPS sites have restrooms labeled for males and females along with at least one gender-neutral, individual-use restroom at each site. The Office of Civil Rights—the federal agency charged with safeguarding equal access to education, including enforcement actions over recipients of federal funds, such as Stillwater Public Schools—recognizes that Title IX protects all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of sexual discrimination. These protections extend to use of school restrooms, allowing individuals to use the restroom corresponding to their gender identity.
This issue is legally complex and there’s no doubt that parents are seeking answers and trying to determine how to address their concerns. We provide this information as background, so that parents fully understand the context of the issue.
Title IX of the Education Amendments of 1972 (‘Title IX’)
Title IX is a reference to a federal law known as “Title IX of the Education Amendments of 1972.” The text of the law is fairly simple. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Essentially, Title IX is the federal law that prohibits schools from discriminating against students and other individuals on the basis of sex. That includes treating individuals differently, subjecting individuals to hostile environments, or harassing individuals on the basis of sex. Title IX applies to any education entity—any school—that receives funding from the U.S. Department of Education. Title IX is widely credited as improving access to educational and athletic opportunities for millions of students, breaking down barriers for women and girls. Significantly, the law was passed in 1972—and this year we are coming up on the 50th anniversary of Title IX.
In passing Title IX, Congress authorized the U.S. Department of Education (Department), specifically, the Department’s Office for Civil Rights (OCR), to promulgate regulations to implement Title IX. The Department at the time (Health, Education and Welfare or HEW) created regulations implementing Title IX. Those regulations took effect in June of 1975. The Department’s regulations have the full force and effect of law; they cover the various aspects of “education programs and activities” where discrimination is prohibited. (OCR’s regulations prohibit discrimination on the basis of sex in admissions, recruitment, housing, access to classes and schools, financial assistance, and athletics—which would cover resources, facilities, and athletic opportunities, to name a few.)
What Is ‘Discrimination on the Basis of Sex’?
In 2016, the Obama Administration’s OCR issued a Dear Colleague Letter that, for the first time, interpreted Title IX’s prohibition of discrimination on the basis of sex to “encompass[es] discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” OCR stated that harassment that targets a student based on gender identity or transgender status violates Title IX—and specifically stated that failure to allow transgender students to utilize intimate facilities that aligned with their gender preferences created a hostile environment for transgender students. The Dear Colleague Letter represented a significant shift in OCR’s enforcement of Title IX and it ignited considerable debate regarding a school’s obligations to ensure equal access to educational programs under Title IX.
Following the issuance of the Obama Administration’s Dear Colleague Letter, a federal court in Texas granted an injunction enjoining enforcement of the guidance. The court held that the term “sex” unambiguously refers to biological sex and that OCR’s guidance was “legislative and substantive” and that it required formal rulemaking to adopt such a policy. The injunction essentially halted OCR’s enforcement of the Dear Colleague Letter.
Two months after the injunction, the 2016 presidential election was decided and Donald Trump assumed office four months later. On February 22, 2017, the Trump Administration’s Department of Education and Department of Justice rescinded the Obama transgender guidance policies. In June of 2017, OCR issued “guidance to the field” to provide additional guidance for processing transgender complaints under Title IX. The guidance document clarified that OCR would assert jurisdiction in some cases involving transgender students, but implied that Title IX did not require schools to provide access to intimate facilities based on a transgender student’s gender identity.
In 2020, the U.S. Supreme Court issued an opinion in Bostock v. Clayton Cnty., Georgia, (140 S. Ct. 1731 (2020). Bostock represents a set of consolidated cases involving employment discrimination allegations filed under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is the federal law that prohibits discrimination on the basis of race, color, religion, sex, and national origin in the employment context. The cases involved two different employment discrimination complaints, one from a gay employee and another filed by a transgender employee. In Bostock, the Court found that Title VII’s prohibition of discrimination on the “basis of sex” did include an employee’s sexual orientation and/or transgender status.
In response to Bostock, OCR issued decisions and guidance documents clarifying how the case would impact Title IX enforcement in schools. The Trump Administration recognized that Bostock’s holding—particularly those provisions that mirrored Title VII’s antidiscrimination provisions—should be applied to Title IX. [Note: One of this article’s co-authors, Kimberly M. Richey, served in the Trump Administration as acting assistant secretary and principal deputy assistant secretary in the Office for Civil Rights at the U.S Department of Education.] As a result, the Trump Administration partially applied the holding in Bostock to Title IX.
OCR determined that Bostock would apply to Title IX complaints that involved allegations that a school’s action or policy that “excludes a person from participation in, denies a person the benefits of, or subjects a person to discrimination . . . based on their homosexuality or identification as transgender”—because, as stated in Bostock, such a distinction “generally involves discrimination on the basis of their biological sex.” However, OCR declined to apply the Bostock opinion fully to Title IX, particularly with regard to provisions of the regulations that permit schools to offer separate sex facilities, athletic opportunities, and other activities. There were several reasons for this decision, all of which are documented in a revised OCR enforcement letter issued in August of 2020.
For example, despite similarities, Title IX and Title VII are very different laws. Title VII uses different operative language, is subject to different statutory exceptions, and was authorized and passed by Congress using different legislative authority.
Moreover, unlike Title VII, Title IX’s sole purpose is to protect women’s and girl’s educational and athletic opportunities.
The regulatory history of Title IX supported the Department’s position that “on the basis of sex” with regard to Title IX was a reference to one’s biological sex. In passing Title IX, Congress specifically directed the Secretary of Health, Education and Welfare (HEW) to consider promulgating regulations to address sports. After passing Title IX, Congress passed another law, known as the Javits Amendment, which instructed the Secretary of HEW to publish regulations implementing Title IX. The Javits Amendment stated that the Department’s regulations “shall include, with respect to intercollegiate activities, reasonable provisions considering the nature of the particular sports.” HEW did promulgate regulations—including regulatory text identical to the current text of athletic regulations. Congress reviewed those regulations, held several days of hearings, and allowed the regulations to go into effect because they deemed them consistent with Congressional intent.
The key issue is that Title IX recognizes the differences between men and women and permits sex-segregated activities. The Department’s regulations allow schools to provide separate housing for students, as long as they are comparable and proportionate. Title IX regulations allow schools to offer sex-specific sports teams, based on sex, and provide separate facilities such as bathrooms and locker rooms. And Congress permitted this, because the regulations were consistent with the intent of Congress.
As referenced in OCR’s enforcement letter, the Supreme Court in Bostock specifically declined to extend the opinion to other federal laws. The Court stated:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. (Bostock, 140 S. Ct. at 1753.)
Also, during oral argument, the Plaintiff’s counsel in Bostock’s companion (R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 140 S. Ct. 1731 (2020)), specifically conceded that the outcome of the case was not relevant to the question of whether a biological male who identified as a transgender female to compete against biological females constituted a violation under Title IX.
JUSTICE GINSBURG: [T]his is a question of someone who has transitioned from male to female … and wants to play on the female team. She is not questioning separate female/male teams. But she was born a man. She has transitioned. She wants to play on the female team. Does it violate Title IX which prohibits gender-based discrimination?
MR. COLE: Right. And I think the question again would not be affected even by the way that the Court decides this case, because the question would be, is it permissible to have sex-segregated teams, yes, where they involve competitive skill or, or contact sports, and then the question would be, how do you apply that permissible sex segregation to a transgender individual?
[See Oral Arg. Tr., R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC]
The Biden Administration
Since assuming office, the Biden Administration has rescinded Trump-era guidance and articulated a different approach to applying Bostock to Title IX cases involving transgender students. The Biden Administration has created a new webpage and a number of sources to provide guidance to schools regarding how to appropriately serve homosexual and transgender students under Title IX. Additionally, the Biden Administration issued a Notice of Interpretation that fully applies the Bostock opinion to all aspects of Title IX. Specifically, this guidance document revives the Obama Administration’s position that it would be a violation of law to require transgender students to use intimate facilities that align with biological sex.
In fact, the Biden Administration will soon release a proposed federal regulation that will codify the application of Bostock in the Department’s Title IX regulations. We have long expected the proposed regulation to apply Bostock to all aspects of Title IX, including requiring schools to allow transgender students to use intimate facilities that align with gender identity—and requiring schools to allow transgender students to participate in athletic opportunities that align with gender identity. The Biden Administration has prioritized a focus on “LGBTQIA+” issues, with an emphasis in expanding federal law to protect transgender rights
What Happens Next?
The Biden Administration is enforcing Title IX in a manner that requires schools to allow transgender students to use intimate facilities and play on athletic teams that align with gender identity, rather than biolgoical sex. And the Department’s proposed Title IX regulations, which are expected this month, will certainly codify Bostock and require schools to allow transgender students to access intimate facilities and athletic opportunities based on gender identity. The Department is required to post the proposed regulations for public comment and to consider the public comments that are submitted before finalizing the new Title IX rule. It is imperative that parents and stakeholders alike engage in the public comment process and submit public comments opposing this interpretation of Title IX.
Realistically, however, this issue is likely to be decided in the courtroom. Several states, including Oklahoma, have passed laws requiring athletes to compete in athletic opportunities that align with their biological sex. The Department’s proposed rule will conflict with these state laws–and possibly other state policies. Oklahoma’s Attorney General John O’Connor, with other Republican Attorneys General, has already signed onto a letter threatening legal action over the proposed regulation, and a lawsuit was filed last year challenging the Biden Administration's enforcement of Title IX. Courts will determine how Title IX is enforced with regard to transgender students, particularly with regard to intimate facilities and athletic competitions.
In the meantime, Oklahoma parents should remain vigilant. Policies, like the one adopted by Stillwater Public Schools are not uncommon. And they are adopted by school boards to avoid legal risk—despite objections from parents. Note that Stillwater Public Schools did not amend or repeal its trangender policy from 2017-2020 when the Trump Administration stated that Title IX did not require schools to allow transgender students to access intimate facilities or pursue athletic opportunities that align with gender identity. OCR may (currently) require the policy, but school leaders are not objecting or making arguments included in this article. As such, parents must get involved, understand the background of this policy, and actively question why their locally elected school board members are opting to side with the Biden Administration instead of parents.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.
Kimberly M. Richey
Senior Fellow for Education
Kimberly M. Richey (J.D., University of Oklahoma) is a senior fellow for education at OCPA. She served in the Trump Administration as a deputy assistant secretary at the United States Department of Education. Formerly, Richey served as the managing director of federal advocacy and public policy at the National School Boards Association and as general counsel for the Oklahoma State Department of Education. She is a certified teacher and is licensed to practice law in Oklahoma, Texas, and the District of Columbia.