What is a university to do when federal and state authorities expect it to comply with contradictory laws? The latest incarnation of this question concerns a matter most governing boards never expected to consider–bathrooms.
A brief chronology. While other states have laws limiting which bathrooms transgender people use, North Carolina’s “HB2,” passed in May, was first: the legislature acted in special session and the governor signed immediately. HB2 overrides local laws providing broader civil rights and labor protections; more famously, it compels public institutions to limit the use of restrooms based on the sex evidenced by birth certificates.
Opponents sued. Business leaders, sports figures, and musicians decried HB2 and threatened boycotts. In a separate case, the federal appeals court with jurisdiction over North Carolina found that Title IX protects a female-to-male high school student. The decision turned in part on the trial court’s failure to defer to federal regulation.
Then, the U.S. Department of Justice (DOJ) advised the University of North Carolina (UNC) that enforcement of HB2 would violate civil rights law. The state and DOJ filed dueling lawsuits. UNC’s president expressed “hope” that DOJ appreciated its “difficult position,” noting both UNC’s anti-discrimination policy and its obligation, as a state school, to comply with state law.
The DCL and its challengers. In mid-May, DOJ and the Department of Education (ED) sent a “Dear Colleague Letter” (DCL) opining that a student’s gender identity is the student’s sex under Title IX. The DCL reads Title IX to require that the institution recognize the student’s gender identity (regardless of birth certificate) and cautions that the “desire to accommodate others’ discomfort” cannot justify a policy that disadvantages a class of students.
While emphasizing that institutions should generally avoid segregating students or applying different rules based on sex, the DCL acknowledges that Title IX allows some sex-segregated options, including restrooms, locker rooms, and housing. Students must generally be permitted to “participate in such activities and access facilities consistent with gender identity.” Individual-user facilities may not be required but may be made available to all “who voluntarily seek additional privacy.” Educators must guard student privacy by avoiding disclosure of birth names or sex assigned at birth and update records to conform with gender identity. The DCL does not speak to social fraternity and sorority membership and addresses athletics separately.
Some states and localities have laws similar to the DCL. Their institutions are adapting to changing expectations and conflicts. Institutions in states without contradictory laws might do the same. (As of this writing, there have been no reported cases of transgender people taking advantage of these laws to act criminally, although locker rooms and showers have been used by predators who are not transgender.) But universities such as UNC are in a difficult position.
The Constitution and federal laws trump inconsistent state laws. But while Title IX plainly overrides inconsistent state laws, does the new DCL embody federal law? It is “subregulatory” guidance; that is, not formally promulgated regulation. DOJ and ED do not claim that the DCL itself has the force of law, but that it explains how they evaluate Title IX compliance. Some applaud that as helpful while others attack it as an impermissible expansion of federal authority.
This is not the first DCL to revolutionize the way institutions think about Title IX. In 2011, ED issued a DCL on sexual assault. Like the new guidance, the 2011 DCL threatened that failure to comply risked federal funding; institutions have generally taken that seriously, although actual repercussions have primarily involved administrative scrutiny, litigation, and bad publicity. The new DCL has also sparked controversy and, unlike the 2011 DCL, quick court challenges. As this article was finalized, 11 states had announced litigation to prevent implementation of the DCL. How will this dispute end? Probably in the Supreme Court after a new president appoints a new justice.