The Strange Evolution of Title IX
Few federal laws have achieved their initial objective more completely than Title IX of the Education Amendments of 1972. Yet today Title IX is more controversial than ever before. The story of its evolution is a cautionary tale about how good intentions and broadly shared goals can become distorted over time by aggressive cultural combat, and how hard it can be to reverse the damage.
Enacted as a little-noted provision buried in omnibus education legislation, Title IX prohibits educational institutions that receive federal funding from discriminating "on the basis of sex." Its immediate effect was to open the doors of educational opportunity to women, and they soon rushed through. In 1972, 57% of college students were male and only 43% were female. By 2010 those numbers had flipped: 57% of college students were women, and that number keeps increasing. In 1970 men earned eight times as many PhDs as women; today women earn more doctorates than men. Once all but shut out of medical, dental, and law schools, women have reached parity. At the elementary and secondary levels girls get better grades, have higher educational aspirations, take more advanced-placement courses, and participate in more extracurricular activities. As Thomas DiPrete and Claudia Buchmann put it in The Rise of Women, "[W]omen have not merely gained educational equality with men; on many fronts they have surpassed men by a large and growing margin."
Despite this remarkable success, federal regulation under Title IX has become increasingly demanding and contentious. Intercollegiate athletics dominated the debate over Title IX until 2011, when sexual harassment became the most pressing controversy. During the Obama administration, the Office for Civil Rights in the Department of Education announced detailed sexual-harassment rules and launched hundreds of well-publicized investigations of colleges, some of which have dragged on for years. Then in 2016, OCR issued a Dear Colleague Letter (DCL) on transgender rights, requiring schools to allocate access to sex-segregated facilities such as bathrooms, showers, and dorm rooms on the basis of students' gender identity rather than their biological sex.
These initiatives were harshly criticized, and not just from conservatives. Civil libertarians, bar associations, groups representing professors, and many legal scholars condemned the sexual-harassment guidelines for threatening both due process and freedom of speech. The 2016 Republican platform devoted a separate section to Title IX, charging that the original purpose of the law had been perverted "by bureaucrats — and by the current President of the United States — to impose a social and cultural revolution upon the American people."
The Trump administration quickly revoked the DCL on transgender rights. A few months later, Secretary of Education Betsy DeVos withdrew the Obama administration's guidelines on sexual harassment. Announcing that "the era of rule by letter is over," she promised to initiate a full rulemaking process on the subject. That rulemaking will drag on for months, probably even years. Meanwhile, the transgender issue is being fought out in federal court, and Congress is considering legislation on sexual harassment. In other words, all these disputes will be with us for many years to come.
There is little danger that the remarkable educational achievements of women and girls will be reversed, no matter what happens with Title IX. They are the result of a profound cultural shift that began in the 1960s, a change that produced Title IX itself.
The key to understanding current disputes over Title IX is to appreciate just how far federal regulations have departed from the law's original purpose. Title IX initially focused on what happens in the classroom. That focus soon shifted to the playing field, then shifted again to bedrooms and bathrooms. Over the past five decades, the understanding of nondiscrimination underlying Title IX has steadily drifted away from eliminating institutional barriers to educational opportunity for women and girls, and toward the much more ambitious project of changing the way we think about sex differences, gender roles, and sexuality in general.
INSTITUTIONAL LEAPFROGGING
Tracing this transformation is not easy due to the peculiar way OCR and the courts have formulated policy under Title IX. The law authorizes OCR to establish regulations that spell out what schools must do to receive federal funds. Like all regulations, they are subject to the Administrative Procedure Act's notice-and-comment rulemaking requirements. But Title IX goes beyond this normal requirement, demanding that all such rules also be signed by the president. Remarkably, the last time OCR followed these procedures for a major Title IX rule was in 1975, when President Gerald Ford signed a rule concerning discrimination in athletics. Since then, it has relied exclusively on unilaterally announced "interpretations," "clarifications," and Dear Colleague Letters instead of formal rules.
These administrative pronouncements would not have packed much punch were it not for the courts' willingness to defer to them. The only enforcement mechanism Title IX creates is the threat of terminating a school's funding. Yet not once has the OCR ever cut off funds to enforce Title IX: Exercising this "nuclear option" is simply too administratively cumbersome and politically perilous. Luckily for the OCR, the Supreme Court solved this problem by discovering an "implied private right of action" in Title IX. This means that private citizens can file suits against educational institutions seeking both injunctive relief and monetary damages. These private suits have given Title IX its teeth, and in most cases converted Dear Colleague Letters into something close to binding law.
The dramatic changes in federal regulation under Title IX have occurred through a process best described as institutional leapfrogging: Judges and administrators take a long series of small steps, with each claiming to rely on the authority of the other; federal mandates then expand while the OCR denies doing anything new. For example, while the Obama White House described OCR's sexual-harassment guidelines as "groundbreaking," the agency insisted that it was simply clarifying pre-existing policy. All the rules on athletics issued over the past 40 years, it maintained, merely clarify the 1975 regulations. Although the Justice Department conceded that its position on transgender rights had "evolved over time," OCR maintained that its Dear Colleague Letters were explaining long-established policy.
Because it is never doing anything new, OCR never needs to consider alternatives or examine the costs and consequences of its actions. And judges play along, claiming merely to divine the original meaning of statutory terms as they in fact establish new policies.
Such institutional leapfrogging is a peculiar form of incrementalism. In the past, incrementalism has meant developing policy slowly, taking into account new information on the policy's effectiveness and its political reception. In the case of Title IX, it involves accumulating legal authority so as to avoid questions about supporting evidence, effectiveness, and political accountability.
LEVELING THE PLAYING FIELD
Institutional leapfrogging is most apparent in athletics, which became a major source of controversy soon after the enactment of Title IX. Though sports are hardly an integral part of education, federal regulators have devoted tremendous attention to them because competitive sports are one of the few parts of school life still segregated by sex. We expect male and female students to compete with one another in math, English, and political-science classes; we do not expect them to compete on the athletic field.
The rules the federal government issued on athletics in 1975 were broad but vague. They applied not just to colleges, but to elementary and secondary schools. They called for equal opportunity at all levels, from physical-education classes to intramural, club, and varsity teams. They allowed separate male and female teams, requiring only that athletic teams and facilities fairly reflect the relative "interests and abilities" of male and female students.
What this would mean in practice was anything but clear. It took nearly 20 years of institutional leapfrogging for more specific rules to emerge. These later regulations differed from the original in two crucial ways. One of these was subject to intense debate; the other, although equally crucial, was hardly discussed at all.
The controversial issue was the source of male-female differences in athletic interest. Federal judges and administrators rejected the relative "interests and abilities" standard in favor of the so-called "parity" standard. This means schools must increase the number of female varsity athletes (or reduce the number of male ones) until the percentage of female varsity athletes reflects the proportion of females in the entire undergraduate student body. Schools cannot escape this mandate by claiming that their female students are less interested in varsity sports than are male students. If women constitute 55-60% of the student body — as is often the case now — they should get 55-60% of the varsity slots and scholarships.
The clearest and most important explanation for this "parity" standard came in the First Circuit's 1996 decision in Cohen v. Brown University. Women's lower level of interest in competitive sports, the court asserted, "reflects women's historical lack of opportunities to participate in sports." As a result, "To assert that Title IX permits institutions to provide fewer athletics participation opportunities for women than for men, based upon the premise that women are less interested in sports," is "to ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women's interests and abilities." Since interest and ability "evolve as a function of opportunity and experience," universities have an affirmative duty not just to create more female teams, but also to recruit students to fill them, and to offer women as many scholarships as they offer men.
All the circuit courts that addressed the issue agreed. Ninth Circuit judge Cynthia Holcomb Hall explained that Title IX "recognizes that, where society has conditioned women to expect less than their fair share of the athletic opportunities, women's interest in participating in sports will not rise to a par with men's overnight." Citing a Harvard Law Review article with the subtitle "Using Title IX to Fight Gender Role Oppression," Judge Hall explained that the approach of the circuit courts "recognizes that women's attitudes toward sports are socially constructed and have been limited by discrimination and gender stereotypes. Congress passed Title IX to combat such discrimination and stereotypes, thereby changing the social environment in which girls and women develop, or do not develop, interests in sports."
These decisions represent the first major appearance of the argument that the purpose of Title IX is to counteract stereotypes — not just those embedded in institutional policies, but those held by young women. The famous line from the movie Field of Dreams became the motto of those advocating more resources for women's sports: "If you build it, they will come." If schools create more college teams and recruit more athletes, they will provide powerful incentives for girls to become serious about sports and thus to reject images of women as weak and passive.
The question of whether male and female differences are entirely "socially constructed" sparked an extended debate that continues today. What has seldom been discussed, however, is why judges and administrators focused on such a narrow slice of athletics, neglecting not just non-varsity college sports, but sports at the elementary and secondary levels. In practice, "parity" numbers are based on roster slots on varsity teams. At Division I schools, some of which have tens of thousands of undergraduates, only about 300 men and about the same number of women at each school play on varsity teams. Many more women participate in non-varsity college athletics. Many, many more girls participate in high-school sports. Compared with these other forms of athletic activity, intercollegiate sports are very expensive both in terms of dollars and, at selective schools, in terms of admissions slots.
So why this limited focus? One factor was administrative convenience: Varsity slots are relatively easy to count; determining the relative weight of a football team and a yoga class is hard. Just as important were organized interests. Here the National Collegiate Athletic Association was crucial. After failing to get intercollegiate sports exempted from Title IX, the NCAA decided to go all in on women's athletics. It sponsored championships for women, created a Gender Equity Task Force, and became a major proponent of what it called "emerging sports for women." What the NCAA would not and could not do was reduce spending on men's football and basketball.
The women's-advocacy groups most vocal on athletics — the Women's Sports Foundation (WSF) and the National Women's Law Center (NWLC) — went along, reaching a tacit deal with the NCAA. They would jointly promote highly competitive women's sports not by cutting men's programs, but by pushing for ever-more athletic spending and more recruiting. As Eleanor Smeal, former president of the National Organization for Women, put it, "Dropping men's teams is a violation of the spirit and the letter of Title IX. The purpose of saying you're not going to discriminate is not to limit opportunities of the other class. We should not be talking about a zero-sum game." OCR has repeatedly insisted that cutting men's teams to meet Title IX quotas is a "disfavored practice." In other words, the problem should be solved by simply pouring more money into athletics.
Women's-advocacy groups have also been quite clear about their interest in promoting the most competitive levels of sports. For example, the NWLC opposed allowing Florida to count flag football as an interscholastic sport because high-school students cannot go on to play varsity flag football in college. According to the former president of the WSF, girls receive educational benefit from a sport only if they take it seriously: "That's one of the things that makes sports such an important experience. You're always striving to get to that next rung." For high-school girls, the "next rung" is a college scholarship and a position on a varsity team; for a college athlete, it is an Olympic or professional team.
The WSF is run in part by former professional athletes, so it's natural that they would encourage colleges to provide a pipeline for their sports. Other women's groups followed their lead largely because they see intercollegiate sports as a powerful mechanism for promoting new role models that challenge conventional stereotypes about feminine weakness and passivity. Through intercollegiate sports, girls can see inspiring, strong women, and recognize that sports can be a ticket to college admissions and scholarships.
The value of women's college sports thus rests in large part on their visibility. But what if colleges build women's sports teams and nobody comes? Recognizing this problem, the Obama administration found that a number of colleges had failed to provide "equal athletic opportunities to students of both sexes with regard to publicity." So it required them to hire more "sports information personnel" to cover women's teams, and it monitored these schools to be sure they provided female athletes with equal media attention. The target of this form of education is not students, but the public at large.
Similarly, in 2012 the Seventh Circuit required an Indiana high school to schedule more girls' basketball games on Fridays and Saturdays. It argued that relegating girls' games to "non-primetime" results "in a loss of audience" and "foster[s] feelings of inferiority" that depress girls' interest in basketball: "[D]isparate scheduling creates a cyclical effect that stifles community support, prevents the development of a fan base, and discourages females from participating in a traditionally male dominated sport." Title IX requires schools to counteract these "stereotyped notions of women's interests and abilities" by increasing the audience for girls' varsity games.
Is spending more money on a small number of varsity athletes and giving large admission boosts to female hockey goalies and point guards good for women's education? After fighting a long losing battle in the First Circuit, Brown University president Vartan Gregorian bitterly concluded that, "by judicial fiat," women's sports "have risen past all other priorities including undergraduate scholarships, faculty salaries and libraries." More money for athletic scholarships means less money for talented mathematicians, musicians, and historians — and given women's achievement levels these days, those scholars left behind will disproportionately be female.
Furthermore, evidence suggests that this increased focus on sports may be impeding women's educational achievement. An important study by William Bowen and his co-authors found that in the 1970s, before Title IX regulations took hold, female college athletes had high-school records similar to non-athletes. They did just as well in college and were more likely to earn graduate degrees. But by the 1990s, female athletes had significantly weaker high-school records than non-athletes, and in college did even worse than their high-school records might have indicated.
Having devoted much of their young lives to a single sport, many of them had not developed intellectual interests. As the authors put it, "[T]he women athletes appear to have caught up with their male counterparts — a dubious distinction!" What is remarkable and alarming about the evolution of Title IX regulation is how rarely anyone has asked whether all this progress is actually good for women's education.
SEXUAL HARASSMENT AND CIVIL RIGHTS
Sexual harassment has been trickier to address. It took nearly a quarter-century for OCR to issue guidance on sexual harassment, and another two decades for enforcement to begin in earnest. The harassment issue differs from athletics in two key ways. First, the central problem is not the restrictive policies established by schools or their allocation of resources, but rather the behavior of employees and students, much of which takes place in private. This means that regulators must determine schools' responsibility for monitoring and controlling the day-to-day activities of thousands of people.
Second, it is not obvious why sexual harassment — even its ugliest form, sexual assault — constitutes sexual discrimination. As a result, the legal foundation for this regulatory effort has never been clearly enunciated. At first many courts held that harassment, however objectionable, is not discrimination. Eventually, judges ruled that harassment does constitute discrimination, but only if it is aimed at members of a particular sex: A heterosexual male who harasses a woman does so because of her sex; the same is true for a heterosexual woman who harasses a man, or a gay man who harasses another man. It does not hold true, oddly enough, for a bisexual who harasses both men and women; his sexual taste is undiscriminating, and thus his harassment is legal.
This "bizarre result," Judge Robert Bork wrote in 1985 while sitting on the D.C. Circuit, indicates that anti-discrimination law does not extend to this problem: "Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks."
After wrestling with this question for a few years, federal judges simply gave up, asserting without explanation that all forms of sexual harassment violate Title IX. This apparent consensus masked serious disagreement about the nature of the problem and the appropriate response. As Yale law professor Reva Siegel noted, "disagreement[s] about the normative basis of the prohibition...in turn produce disputes about the range and type of practices the prohibition constrains."
When judges and administrators began to address harassment under Title IX, they incorporated — sometimes verbatim — guidelines previously developed for employers under Title VII of the Civil Rights Act. Occasionally, they acknowledged the differences between the employment and school context, but that did not stop them from applying the same tort-law framework. Federal courts took the lead, relying on familiar legal concepts regarding liability. So by the time OCR finally issued guidelines in 1997, it could cite what it described as the "most advanced" court rulings. Here again we see leapfrogging in action: Courts incorporated into their Title VII decisions guidelines previously issued by the Equal Employment Opportunity Commission; other judges applied those Title VII precedents in Title IX cases; and OCR followed the court decisions it found most agreeable.
The liability model endorsed by the courts is based on two usually unstated assumptions. The first is that sexual harassment is the work of a few "bad apples" — usually but not always men. Employers and schools are responsible for announcing anti-harassment policies, establishing grievance procedures, responding promptly and effectively to complaints, and removing these bad apples. The second assumption is that the threat of monetary damages creates an incentive strong enough to lead employers and schools to weed out bad apples and thus eliminate the "hostile environment."
For years, federal judges argued about the extent of schools' liability and what constitutes harassment serious enough to establish a legal claim. In 1998 and 1999 the Supreme Court resolved some of these disputes. Its interpretation of the law diverged markedly from the guidelines OCR had announced in 1997. Those OCR rules had, in effect, made schools strictly liable for harassment by teachers and staff, and had applied a negligence standard for peer harassment. Moreover, schools were responsible for stopping harassment before it became serious or pervasive.
The Supreme Court, by contrast, held that schools are liable for damages only if they have "actual knowledge" of misconduct by teachers or students and act with "deliberate indifference" — a very lenient standard. Moreover, courts should award damages "only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Justice Sandra Day O'Connor cautioned judges to "refrain from second guessing the disciplinary decisions made by school administrators."
These Supreme Court decisions prompted scathing responses from women's groups, and in law reviews. For example, one law-review article asked, "Why has the Supreme Court allowed schools to put their heads in the sand?" Another claimed the decisions had caused "the metastasization of the sexual harassment epidemic in educational institutions." Women's groups asked Congress to amend the law to overturn the Court's decisions. Congress, though, did nothing.
On the very last day of the Clinton administration in 2001, OCR baldly rejected the Court's interpretation of schools' responsibilities. It published "midnight" guidelines announcing that it would not change its 1997 guidelines to reflect the Supreme Court's decisions. OCR claimed the Court's interpretation applies only to lawsuits for monetary damages, not to administrative regulations establishing what schools must do to qualify for federal funding. In bland legalistic language that belied the major step it was taking, the agency explained it would no longer "describe a school's compliance in terms of ‘liability' law." Instead of explaining what schools can do to escape liability, OCR spelled out in detail the steps schools must take "to prevent, eliminate, and remedy sexual harassment" in order to keep their federal funding. "Prevent, eliminate, and remedy sexual harassment" — that is a very tall order at schools with thousands of students.
OCR offered a clever legal argument, but one that ignored a fundamental reality: For years, the agency had relied on judicial enforcement of Title IX because it did not dare terminate federal funding. When OCR's rules became more demanding than those recognized by the courts, how could it hope to enforce its dictates? The Bush education department initially questioned the legality of these rules, but it did nothing to either revoke or enforce them. The rules thus remained in limbo for over a decade.
In retrospect, OCR's rejection of the tort-liability model for sexual harassment had great significance for what was to come. Many feminist legal scholars — most notably Catherine MacKinnon, author of the leading book on the topic — vigorously rejected the tort approach, claiming it focuses much too heavily on individual complaints and remedies.
Tort law, MacKinnon argued, "considers individual and compensable something which is fundamentally social and should be eliminated." By treating instances of sexual harassment "as if they are outrages particular to an individual woman rather than integral to her social status as a woman worker," the tort-based approach "fails to analyze the relevant dimensions of the problem." Sexual harassment must be viewed as part of the larger pattern of the subordination of women: "Women historically have been required to exchange sexual services for material survival, in one form or another. Prostitution and marriage as well as sexual harassment in different ways institutionalize this arrangement."
THE SEX BUREAUCRACY
With strong support from the Obama White House and newly emerging advocacy groups, in 2011 OCR launched its initiative to curb sexual assault on college campuses. Russlyn Ali, the assistant secretary for civil rights, explained that OCR's sexual-harassment guidelines were based on a "new paradigm." This "new paradigm" incorporated two key elements of MacKinnon's subordination model.
First and most important, OCR and the White House repeatedly insisted that campuses around the country were experiencing an "epidemic" of sexual assault so extensive that it could be adequately addressed only through a "sea change" in our attitudes about sex. According to a report issued by the White House Council on Women and Girls, "Sexual assault is pervasive because our culture still allows it to persist." Consequently, "violence prevention can't just focus on the perpetrators and the survivors. It has to involve everyone." Moreover, prevention programs must be "sustained (not brief, one-shot educational programs), comprehensive, and address the root individual, relational, and societal causes of sexual assault."
Second, they contended, schools had been so complicit in condoning this "rape culture" that a few tweaks to their incentive structures would not be nearly enough to solve the problem. OCR's "new paradigm" involved building within educational institutions large, autonomous Title IX compliance offices, which would be responsible not just for punishing misconduct but for training students and faculty about acceptable sexual relations.
Given the Supreme Court's narrow interpretation of Title IX, the agency could not rely on the threat of private suits for enforcement. It responded to this challenge by devising an innovative and generally successful three-part strategy. First was publicity. In the past, OCR had publicized investigations only at their completion. Now, it would list from the outset the names of all schools under investigation. It started with well-known schools that prized their reputations and thus had an incentive to settle quickly.
Second, OCR turned every sexual-assault complaint lodged by an individual into a full-blown investigation of the entire institution. Assistant Secretary Catherine Lhamon explained that OCR now viewed each complaint filed by an individual as "an opportunity for a broader assessment of a school's overall compliance." These investigations sometimes lasted for years, imposing significant financial as well as reputational costs on colleges.
And third, these investigations often culminated in a settlement requiring the school to create a large Title IX compliance office. These offices were given multiple responsibilities and were closely monitored by OCR. It has not been unusual for schools to demonstrate their good faith by hiring former OCR lawyers to run them.
Most of the criticisms of OCR's sexual-harassment guidelines have focused on due-process and free-speech issues. These are very serious matters, but they are only one part of a bigger story. Equally important and too often overlooked are the regulatory mandates on training, remediation, and prevention. Schools are expected to engage in regular training of virtually everyone, including students, faculty, resident advisors, adjudicators, police, and investigators. They must also conduct regular "climate checks" to estimate the extent of various forms of sexual misconduct.
All this comes under the purview of schools' Title IX offices, which have grown exponentially as a result of OCR's guidelines and settlements. By 2016, Harvard had more than 50 full- or part-time Title IX coordinators; Yale had 30. At the University of California, Berkeley, Title IX spending rose by over $2 million between 2013 and 2016. Stetson University law professor Peter Lake, the leading chronicler of these developments, estimates that from 2011 to 2015 colleges spent more than $100 million to comply with Title IX sexual-harassment guidelines, much of it in the form of salaries to those employed by Title IX coordinators. As a result of the government's focus on prevention, Lake claims, "Title IX coordinators are now starting to become almost like an academic department, teaching people about culture change."
These mandatory trainings attempt to explain to students how to draw the line between acceptable and unacceptable sexual activity, incorporating guidance from several government publications about what constitutes "healthy, mutually respectful" sexual relationships. Brown, for example, tells its students that consent requires "understanding what a partner is feeling." Yale tells its students, "Hold out for enthusiasm. In general, it's easy to tell if someone is enthusiastic about an encounter or not." The University of Georgia advises that "[i]f you are not accustomed to communicating with your partner about sex and sexual activity the first few times may feel awkward. But, practice makes perfect. Be creative and spontaneous. Don't give up." (This seems to conflict with OCR's guidelines, which declared that repeatedly rejected overtures themselves constitute sexual harassment.)
In a California Law Review article, Harvard law professors Jacob Gersen and Jeannie Suk note that the "college sex bureaucrats" who run these federally mandated programs "are not simply training students on the rules of rape, sexual assault, and sexual harassment." Rather,
They are instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire....Sexual violence education and prevention programming is rapidly morphing into sex instructions reminiscent of guidance provided by sex therapists like Dr. Ruth.
This jibes well with the public-health framework that has so strongly influenced the federal regulatory orientation to sexual violence. Since the sex bureaucracy's role is regulating health and safety, explanations of consent easily lead to instruction about what is "healthy" or "positive" in sex and relationships.
Most schools keep their training protocols secret, but it is clear that many of these new Title IX offices take seriously their mandate to re-educate students about the meaning of masculinity and femininity. For example, in a 2017 job posting, Princeton sought an "Interpersonal Violence Clinician and Men's Engagement Manager" to develop programs "challenging gender stereotypes" and those "belief systems and social constructs that contribute to violence." Candidates for the position had to possess "knowledge about the challenges and privileges of male identity formation" and "expertise in...social justice issues."
In short, for OCR, "changing the culture" means not just condemning sexual violence but instilling new expectations about sex and gender roles that govern even the most intimate personal relationships.
THE TRANSGENDER QUESTION
OCR regulation of athletics and sexual harassment took years to develop. The transgender issue, in contrast, emerged with startling rapidity. For decades, almost everyone had agreed that the nondiscrimination provisions of Title VII and Title IX did not extend to sexual orientation or transgender status. Until 2014, even President Obama argued that such a step would take new legislation.
As with athletics and sexual harassment, the foundation for OCR's 2016 Dear Colleague Letter on transgender rights was laid by the lower courts. Starting around 2000, federal circuit courts began to hold that Title VII prohibits discrimination against transgender employees. They relied almost entirely on dicta in a plurality opinion announced by the Supreme Court in a 1989 Title VII case, Price Waterhouse v. Hopkins. In that case, four members of the Court agreed that failure to promote a woman for not acting in a sufficiently "lady-like" fashion constitutes sex discrimination.
An employer violates Title VII, according to Justice William Brennan, if that employer's decisions were "likely influenced by sex stereotyping." Moreover, Brennan continued, "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Although the case did not involve gender identity, the wording of the plurality opinion suggests that transgender employees cannot be subject to adverse employment action simply because they refuse to conform to "sex stereotypes" — such as the expectation that men not wear dresses or insist upon being referred to as "she."
OCR first addressed the issue in a 2010 DCL on bullying: "[I]t can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity." As it investigated specific complaints about bullying, the agency extended its demands to cover a much different and more controversial issue: namely, access to sex-segregated facilities. It reached settlements with a few school districts on the use of these facilities, and then, in yet another instance of institutional leapfrogging, used these settlements to claim it had a longstanding policy on this topic.
This was a particularly big leap. In the employment context, the major issue had been whether an employer can deny a job to a transgender candidate. But no one ever claimed that transgender students should be thrown out of school. For schools, the central issue is how students should be assigned to facilities that the law allows to be segregated by sex.
Both Title IX itself and the 1975 regulations clearly authorize schools to provide separate bathrooms, showers, housing, and sports teams for males and females. OCR's 2016 DCL required schools to allocate access to these facilities on the basis of gender identity, not biological sex. The legal rationale for this was weak: The law and the regulations say "sex," not "gender identity." Indeed, the term "gender identity" was invented specifically to distinguish one's internal sense of gender from the conventional meaning of "sex," so it is hard to see why the word "sex" must mean "gender identity." Nonetheless, the language of the 2016 DCL was uncompromising: The "desire to accommodate others' discomfort cannot justify a policy" that denies transgender students the right to choose the sex-segregated facilities they will use, the sports teams on which they will play, and their preferred names and pronouns.
That DCL was short-lived. A federal district court in Texas enjoined its enforcement, and the Trump administration withdrew it. Soon thereafter, though, the Seventh Circuit interpreted Title IX to require the same policy, insisting that, in passing Title VII and Title IX, Congress had "intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." "By definition," it noted, "a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth." A school "policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX."
Shortly after she left OCR, Assistant Secretary Lhamon told an interviewer, "The bathroom question never was just about a bathroom. It is about who that child is at school and how that child will be perceived and seen." Any stigma that currently attaches to transgender status must be eliminated, which means changing how transgender students are "perceived and seen" by other students and school officials. Title IX, she implied, requires regulators to do all they can to change harmful ways of thinking.
Regardless of the outcome of pending litigation, federal policy on the treatment of transgender students will not have as significant an effect on public education as one might think, given the attention it has received. The policy affects very few students, and many of them prefer individual-user facilities. But the issue provides a particularly stark example of how the purpose of Title IX regulation has changed.
Moreover, it highlights some of the ways these regulatory demands can conflict with one another. According to Title IX sexual-harassment guidance, an off-color joke or wayward look can seriously threaten a female student's educational opportunities. But according to Title IX transgender guidance, having a person with male anatomy walking around a women's locker room should never be considered threatening.
We provide separate male and female teams to provide equal opportunity to women because of the physical differences between the sexes, but now say that students can choose their teams on the basis of a subjective sense of gender, not their physique. Most disturbing, we have put so much emphasis on highly competitive sports that some schools — and even some student athletes and their parents — have covered up or overlooked horrifying sexual abuse.
A LONG-OVERDUE DEBATE
How did we get here? Four key features of policymaking under Title IX stand out. The first is the logic of expansion outlined above: the commonly heard argument that establishing true equality of opportunity requires eliminating all the social preconceptions that limit the aspirations and achievement of female students. According to this view, getting at the root of the problem of gender inequality requires changing how we all think about gender roles, sex differences, and sexuality itself.
Second is the convoluted, institutional-leapfrog policymaking process that has hidden these innovations from all but the most attentive observers — and often from them as well. When regulators do not acknowledge anything they do as new, nothing requires serious examination or debate.
Third, the interest groups with the most investment in these issues have had a great deal of power in shaping how the policies are actually implemented. These include not just the NCAA, but also the Women's Sports Foundation and LGBT groups, all of which found sympathetic allies in the Democratic Party.
And finally, there was the dog that didn't bark: the lack of opposition and sometimes even the presence of enthusiastic support from within regulated educational institutions. Regulators were often pushing against an open door. And after entering, OCR was able to set up what are in effect branch offices within those schools. It's therefore highly unlikely that many schools will voluntarily change their current policies, regardless of steps the Trump administration might take to roll back OCR guidance.
Providing equal athletic opportunity, preventing sexual assault, and dealing sympathetically with those experiencing gender dysphoria are all laudable objectives. The big question is whether Obama-era regulations constitute appropriate solutions. Are they likely to work? At what cost? Did Congress authorize such administrative action when it enacted Title IX nearly half a century ago? And perhaps most important, are these policies in the best interest of women's education? The strange process that has produced Title IX regulation has preempted serious discussion of these matters. It is high time to begin that debate.
