Does Title IX prohibit schools from requiring students to use a restroom or changing area on the basis of their biological sex rather than their gender identity? This is a question that is being litigated with increasing frequency in courts across the country, and without consistent results.
Recently, in the case of Bridge v. Oklahoma State Department of Education, the district court in the Western District of Oklahoma upheld a law enacted by the state in 2022 (S.B. 615) that says the following:
To ensure privacy and safety, each public school and public charter school that serves students in prekindergarten through twelfth grades in this state shall require every multiple occupancy restroom or changing area designated as follows: 1. For the exclusive use of the male sex; or 2. For the exclusive use of the female sex. Each public school or public charter school in this state shall provide a reasonable accommodation to any individual who does not wish to comply with the provisions of subsection B of this section. A reasonable accommodation shall be access to a single occupancy restroom or changing room.
The law goes on to define “sex” as “the physical condition of being male or female based on genetics and physiology, as identified on the individual’s original birth certificate.” Penalty for a school’s failure to comply with this law is a reduction in state funding for the following fiscal year.
The unsuccessful challenge to S.B. 615 was brought by three transgender student plaintiffs who were told by their respective schools, following passage of this statute in 2022, that they had to use a single use or biological sex bathroom. In its analysis of whether S.B. 615 violated Title IX, the district court looked to the history of Title IX, and concluded that “[a]t the time Title IX was enacted, the ordinary public meaning of ‘sex’ was understood to mean the biological, anatomical, and reproductive differences between male and female. It is up to Congress to change that meaning, not this Court.”
The court did acknowledge that courts in other parts of the country may have reached different result (“[a]dmittedly, other circuits have reached the conclusions advocated for by Plaintiffs”), but that within Oklahoma, there was no “binding Supreme Court or Tenth Circuit precedent to the contrary” of its analysis and result.
As the court in Bridge v. Oklahoma State Department of Education noted, the Supreme Court has yet to weigh in on this issue. At the time Bridge was decided, the Supreme Court did have before it a petition for a writ of certiori in a similar case from the 7th Circuit Court of Appeals. However, on January 16, 2024, the Supreme Court declined to hear this case.
Absent guidance from the Supreme Court or Congressional action, the question of how schools must handle restroom and changing area use for transgender students will remain state and circuit court specific. To be in compliance in your state, we encourage you to consult with your legal counsel or reach out to us about the consulting packages we offer.