These rules, while not definitively addressing the contentious issue of trans-identified male athletes' participation in women and girls' school sports, have expanded the definition of sex-based discrimination to include intentional misgendering.
Misgendering, for those unfamiliar with the term, refers to the act of identifying a person by their biological sex, using corresponding pronouns, even if the individual identifies or presents as the opposite sex. According to the new regulations, intentional misgendering is now classified as "sex-based discrimination."
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The Department of Education clarifies, "A stray remark, such as a misuse of language, would not constitute harassment under this standard," leaving room for the possibility of intentional misgendering or refusal to use an individual's preferred pronouns.
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The regulations, under the section titled "Hostile Environment Sex-Based Harassment—Sex Stereotyping and Gender Identity," state that intentional misgendering with harmful intent is a violation of Title IX. Schools that fail to address instances of students or faculty refusing to use an individual's preferred pronouns could potentially risk their federal funding.
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The Department of Education explains, "The Department has long recognized, consistent with the text and purpose of the statute and courts' interpretations, that Title IX's prohibition on sex discrimination encompasses harassment based on sex stereotypes."
This interpretation implies that it would be discriminatory to refer to a male who presents as a woman as male simply because he is biologically so. According to the Department's new regulations, assuming that a male who appears male, despite his efforts to present otherwise, is male is considered discrimination based on sex stereotypes.
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The new rules reference the 2001 Revised Sexual Harassment Guidance, which states that "acts of verbal, nonverbal or physical aggression, intimidation, or hostility based on sex or sex-stereotyping [is] a form of sex discrimination to which a school must respond, if it rises to a level that denies or limits a student's ability to participate in or benefit from the educational program."
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The Department of Education has determined that "conduct directed at a student’s nonconformity with stereotypical notions of how boys or girls are expected to act and appear or that seeks to restrict students from participating in activities that are not stereotypically associated with the students’ sex could constitute sex-based harassment that creates a hostile environment."
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The regulations further state that "unwelcome conduct based on gender identity can create a hostile environment when it otherwise satisfies the definition of sex-based harassment." They add that "Courts have also recognized that policies that prevent transgender students from participating in school consistent with their gender identity can harm those students."
The rules do not address potential harm to women when men are granted access to sex-segregated spaces, such as bathrooms, locker rooms, or female-only organizations. Instead, the regulations prioritize individuals who identify as women over biological women, expanding the definition of sex to include gender identity rather than solely biological sex, which was the basis for the original 1972 rules.
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The Department of Education determines that "sex-based harassment," including harassment based on sex stereotyping or gender identity, is covered by Title IX if it is sex-based, unwelcome, subjectively and objectively offensive, and sufficiently severe or pervasive to limit or deny a student’s ability to participate in or benefit from a recipient’s education program or activity (i.e., creates a hostile environment)."
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In essence, refusal to acknowledge an individual's gender identity is now classified as "harm" and sex-based discrimination. This rationale stems from the Supreme Court's narrow ruling in the Bostock decision of 2020, which determined that it was discriminatory on the basis of sex to prevent a male employee from wearing a dress because a woman wearing a dress would not be prevented from doing so.
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The Department of Education concludes, "Thus, harassing a student—including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on the student’s nonconformity with stereotypical notions of masculinity and femininity or gender identity—can constitute discrimination on the basis of sex under Title IX in certain circumstances. Recipients have a responsibility to protect students against sex-based harassment. OCR will continue to address complaints of harassment based on sex stereotypes and gender identity, consistent with OCR’s jurisdiction under Title IX and the final regulations."
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