Title Ix: Between a Rock and a Hard Place

• Citation: Vol. 36-6
• Year: 2025

1

Title IX: Between a Rock and a Hard Place

Vol. 36 Issue 6 Pg. 38

South Carolina Lawyer

May, 2025

Between a Rock and a Hard Place

BY ISABELLE YOUNG

Pursuant to the basic premise that every student deserves educational opportunity free from discrimination, Congress enacted Title IX as part of the Education Amendments of 1972 to prohibit sex-based discrimination in educational programs and activities that receive federal funds. Congress simultaneously authorized the Department of Education (DOE) to issue regulations to enforce the prohibition against sex discrimination and to terminate financial assistance to institutions that do not comply.

Fast forward 50 years to April 2024, when the DOE released long-awaited revisions to the 2020 regulations, which became known as the Final Rule. The Final Rule, which among other changes expanded Title IX protections to include transgender students, triggered a tsunami of legal challenges across the country causing significant uncertainty about the state of the law. Before any of these challenges could reach the United States Supreme Court, however, President Donald Trump was elected to his second term, and his administration acted to rescind the Final Rule. Within weeks of President Trump taking office, his administration also issued several executive orders affecting how school districts interpret and apply Title IX. The 2020 regulations once again govern school districts, but plenty of uncertainty remains.

Title IX: An Introduction to the Chaos

Title IX's nondiscrimination mandate states that "[n]o 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 education program or activity receiving federal financial assistance." There are only a small number of "specific, narrow exceptions to that broad prohibition."^[1]

Throughout the years, DOE has promulgated regulations effectuating Title IX, including in 2020, when it specified how recipients of federal funds must respond to allegations of sexual harassment. One month after DOE published the 2020 regulations, the Supreme Court held in Bostock v. Clayton County that the prohibition on discrimination "because of ... sex" in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(i), necessarily encompasses discrimination because of sexual orientation and gender identity.^[2]Following Bostock, President Joe Biden directed DOE to review the 2020 regulations and existing agency guidance "for consistency with governing law."^[3]In July 2022, DOE issued a "Notice of Proposed Rulemaking."

Understanding Bostock

In Bostock the Supreme Court explained, in an opinion written by Justice Neil Gorsuch, that Title VII's "because of" language "incorporates the 'simple' and 'traditional' standard of but-for causation."^[4] "[S]ex is necessarily a but-for cause" of discrimination on the basis of transgender status "because it is impossible" to discriminate against a person for being transgender "without discriminating against that individual based on sex."^[5] To illustrate the point: if, for example, an employer "fires a transgender person who was identified as a male at birth but who now identifies as a female," but "retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth."^[6]The Court explained that "the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."^[7] This is so even assuming "sex" in Title VII "refer[s] only to biological distinctions between male and female."^[8]

Bostock and the rationale set forth in the opinion is what prompted DOE to revise its Title IX regulations and issue the Final Rule to ensure that protections against sex discrimination extend to sexual orientation and gender identity.

The Fourth Circuit's application of Bostock

Relying on Bostock, the Fourth Circuit Court of Appeals held in Grimm v. Gloucester County School Board^[9] that discrimination based on gender identity is subject to heightened scrutiny because transgender people constitute a qua-si-suspect class. The court explained:

Although Bostock interprets Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), it guides our evaluation of claims under Title IX. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); cf. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) ("Congress modeled Title IX after Title VI ... and passed Title IX with the explicit understanding that it would be interpreted as Title VI was." (citation omitted)). In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination "on the basis of sex." As the Supreme Court noted, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Bostock, 140 S. Ct. at 1741. That is because the discriminator is necessarily referring to the individual's sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator's actions. See id. at 1741-42. As explained above in the equal protection discussion, the Board could not exclude Grimm from the boys bathrooms without referencing his "biological gender" under the policy, which it has defined as the sex marker on his birth certificate. Even if the Board's primary motivation in implementing or applying the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board's actions. Therefore, the Board's policy excluded Grimm from the boys restrooms "on the basis of sex."^[10]

Four years later, in Kadel v. Folwell, ^[11]the court reaffirmed that heightened scrutiny applies to transgender persons' equal protection claims. The court was tasked with applying the Affordable Care Act's antidiscrimination mandate: "[e]xcept as otherwise provided ... an individual shall not, on the ground prohibited under Title VI of the Civil Rights Act ..[and] Title IX ..be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance," and noted that "for guidance" in evaluating a Title IX claim, the Fourth Circuit relies on case law interpreting Title VII. The court ruled as follows:

Appellants argue that Bostock is the wrong standard because it was "limited to Title VII claims involving employers who fired employees because they were gay or transgender." But there is nothing in Bostock to suggest the holding was that narrow. Appellants also argue

that "[historically in terms of Title IX jurisprudence, the term 'sex' referred to the binary sex of male and female, and 'gender identity' was understood as a distinct concept." But Bostock was based on that assumption. 140 S. Ct. at 1739 ("[B] ecause nothing in our approach to these cases turns on the outcome of the parties' [historical] debate ... we proceed on the assumption that 'sex' ... referr[ed] only to biological distinctions between male and female."). So even if the definition of sex under Title IX encompasses only binary sex, West Virginia's policy still violates the ACA.^[12]

The defendant petitioned the Supreme Court for writ of certiorari asking the Court, in part, to address the circuit split concerning whether laws targeting sex-change treatments discriminate on the basis of sex, and whether transgender individuals constitute a qua-si-suspect class. The petition was fully briefed and entered conference in the winter of 2024.

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Also in 2024, the Fourth Circuit in B.PJ. v. West Virginia State Board of Education^[13] invalidated West Virginia's law "[c]larifying participation for sports events to be based on biological sex of the athlete at birth," W.Va. Stat. 18-2-25d.^[14] The ruling states in relevant part:

For one, this Court has already held that discrimination based on gender identity is discrimination "on the basis of sex" under Title IX, see Grimm, 972 F.3d at 616, and this Act discriminates based on gender identity, see Part IV(A)(1), supra. The Act also discriminates based on sex assigned at birth by forbidding transgender girls—but not transgender boys—from participating in teams consistent with their gender identity. See id. The Act thus goes beyond even what this Court concluded was impermissible in Grimm: Under this Act, a transgender boy like Gavin Grimm may play on boys teams but a transgender girl like B.PJ. may not play on girls teams.^[15]

West Virginia filed a petition for writ of certiorari, which petition also entered conference at the end of last year.

The (not so) Final Rule

The Final Rule, which went into effect on August 1, 2024, (1) clarified the scope of prohibited sex discrimination under Title IX; (2) clarified the limits of permissible different or separate treatment on the basis of sex under Title IX; (3) clarified the definition of sex-based harassment under Title IX; and (4) adjusted DOE's grievance procedure regulations.

Notably, the Title IX regulations had never defined "sex discrimination." Under the Final Rule, discrimination on the basis of sex included "discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity."^[16]

As for the second big change, the 2020 regulations define "sexual harassment" in relevant part as "[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and

objectively offensive that it effectively denies a person equal access to the . . . education program or activity."^[17] The Final Rule defined "sex-based" "hostile environment harassment" in relevant part as "[u]nwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the ... education program or activity."^[18]

This is just a snapshot of the major changes. The Final Rule also effectuated changes to the grievance process, clarified use of the evidentiary standard, and defined "complaint" to include an oral complaint as well as a written one.

The Backlash to the Final Rule Federal lawsuits

On April 29, 2024, South Carolina joined Alabama, Florida, and Georgia, along with several organizations, in filing a complaint in the U.S. District Court for the Northern District of Alabama challenging the Final Rule. These plaintiffs argued, among other things, that the Final Rule violates the Administrative Procedure Act because DOE's interpretation of Title IX is inconsistent with the statutory text. In other words, the plaintiffs challenged DOE's decision to extend Title IX protection against sex discrimination to discrimination on the basis of gender identity and sexual orientation. DOE countered that it permissibly interpreted the statutory text of Title IX in light of the Supreme Court decision in Bostock. Further DOE argued that Bostock's reasoning applies with equal force to Title IX's prohibition on discrimination "on the basis of sex," 20 U.S.C. 1681(a), which employs materially identical text and a causation standard indistinguishable from Title VII's "because of ... sex" language, 42 U.S.C. § 2000e-2(a)(1). The district court denied the plaintiffs' motion to enjoin the Final Rule, those plaintiffs appealed, and, on July 31, 2024, the Eleventh Circuit Court of Appeals issued an order enjoining DOE from enforcing the Final Rule.

In parallel proceedings, Kansas, Alaska, Utah, Wyoming, Moms for Liberty, and several other plaintiffs sued to enjoin the Final Rule. On July 2, 2024, a federal judge on the U.S. District Court for the District of Kansas granted the plaintiffs' request and preliminarily enjoined the Final Rule on the basis (in relevant part) that Title IX's prohibition against discrimination "on the basis of sex" must be interpreted consistent with "the traditional concept of biological sex in which there are only two sexes, male and female."^[19] The district court reasoned that Bostock "involved a different statute, Title VII, which prohibits sex discrimination in employment," and that "Title IX includes several carve outs to the prohibition on sex discrimination that are not present in Title VII," and "Title IX is about schools, and 'the school is not the workplace.'"^[20] The scope of the injunction extended to the parties to the case, including "any school attended by a minor child of a member of Moms for Liberty."^[21]

Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia likewise filed suit in the U.S. District Court for the Eastern District of Kentucky to

enjoin the Final Rule. The district court issued a preliminary injunction, finding, as had the district court in Kansas, that the holding in Bostock is limited to Title VII.^[22] On January 9, 2025, that court ruled on the merits and ordered the Final Rule vacated.

The Trump administration rescinded the Final Rule in February 2025 and thereby put an end to these legal challenges, at least as to practical considerations: all school districts are now, once again, governed by the 2020 regulations. But when the 2020 regulations are silent as to gender protections, other sources of law have sought to fill the gap.

Executive orders

On January 20, 2025, the Trump administration issued an executive order titled, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government."^[23] This executive order states in relevant part:

The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.

Nine days later, the Trump administration issued an executive order titled, "Ending Radical Indoctrination in K-12 Schooling."^[24] This order lays out the administration's plan to "eliminat[e] federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology."

On February 5, 2025, the Trump administration issued an executive order titled, "Keeping Men Out of Women's Sports."^[25] This order states in relevant part that "it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy."

As of February 12, 2025, the DOE was investigating five school districts in Virginia for allowing students to use locker rooms and bathrooms based on gender identity. This practice, which DOE says violates Title IX and the recent executive orders, is the very practice that in Grimm the Fourth Circuit said the law requires.

South Carolina's position

The South Carolina Department of Education ("SCDE") issued three memos between April and July 2024, directing schools not to implement the Final Rule. Additionally, the state legislature passed Budget Proviso 1.120 (SCDE: Student Physical Privacy), which requires all South Carolina school districts to designate multi-occupancy restrooms and changing facilities for use only by members of one sex and which prohibits students of the opposite

sex from using the same bathrooms, changing facilities, overnight sleeping quarters, shared bathrooms, locker rooms, and shower rooms. The Proviso requires SCDE to withhold 25% of state funds used to support district operations for policy violations.

Conclusion

South Carolina sits in the Fourth Circuit, and thus Fourth Circuit law governs our state. The Fourth Circuit has ruled that discrimination based on gender identity is discrimination "on the basis of sex" under Title IX. As the ruling of a federal appellate court, this should resolve the issue when the 2020 regulations are silent. Yet, South Carolina was party to a lawsuit in the Eleventh Circuit seeking to enjoin the Final Rule, at least in part, on the basis that the scope of sex discrimination necessarily cannot include discrimination based on gender identity and South Carolina schools remain subject to Budget Proviso 1.120. Moreover, the executive branch has issued multiple orders mandating certain action, which action appears to be in direct contravention of Fourth Circuit law. School districts, therefore, remain stuck between a rock and a hard place. In short, it is a chaotic time for sex discrimination law, the students the law aims to protect, and the adults entrusted with protecting those students. Ultimately, this issue may end up, once again, before the United States Supreme Court for further guidance. Thus, practitioners in this area must continue to keep up to date about the administration's executive orders and the rulings coming out of the Circuit Courts until that happens.

Isabelle Young is a certified Title IX investigator, practicing in Saxton and Stump's Charleston office as senior counsel in the Investigations and Criminal Defense, Litigation, and Education groups.

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Notes:

^[1] 20 U.S.C. § 1681(a).

^[2] Bostock v. Clayton County, 590 U.S. 644, 660 (2020) (Gorsuch, J.).

^[3] Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, Exec. Order No. 14,021, 86 Fed. Reg. 13,803 (Mar. 8, 2021).

^[4] Bostock, 590 U.S. at 656-57.

^[5] Id. at 660, 661.

^[6] Id. at 660.

^[7] Id.

^[8] Id. at 655.

^[9] 972 F.3d 586 (4th Cir. 2020).

^[10] Grimm, 972 F.3d at 616-17.

^[11] 100 F.4th 122 (4th Cir. 2024).

^[12] Kadel v. Folwell, 100 F.4th 122, 164 (4th Cir. 2024).

^[13] 98 F.4th 542 (4th Cir. 2024).

^[14] South Carolina's corollary statute is "Biological gender-based and coeducational school sports teams; birth certificates; remedies," S.C. Code Ann. § 59-1-500.

^[15] B.P.J., 98 F.4th at 558.

^[16] 89 Fed. Reg. 33,886.

^[17] 34 C.F.R. § 106.30(a)(2) (emphasis added).

^[18] 89 Fed. Reg. 33,884 (emphasis added).

^[19] Kansas v. United States Dep't of Educ., 739 F. Supp. 3d 902 (D. Kan. 2024).

^[20] Id. at 920.

^[21] Id. at 936.

^[22] Tennessee v. Cardona, 737 F. Supp. 3d 510 (E.D. Ken. 2024).

^[23] Exec. Order No. 14,168, 90 Fed. Reg. 8615 (Jan. 20, 2025).

^[24] Exec. Order No. 14,190, 90 Fed. Reg. 8853 (Jan. 29, 2025).

^[25] Exec. Order No. 14,201, 90 Fed. Reg. 2,513 (Feb. 5, 2025).

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