A paper recently released by the Congressional Research Service has announced that new regulations to Title IX will go into effect this August.  Title IX is an amendment to civil rights legislation that prohibits education programs that receive federal funding from discriminating on the basis of sex.

The revised law expands the scope of sex discrimination to include sexual orientation and gender identity.

According to the paper, the updated regulations result from a 2020 Supreme Court decision that determined “an employer cannot discriminate based on people’s sexual orientation or gender identity without considering their sex.” Although the court didn’t describe how its reasoning may be applied to issues such as bathroom and locker room access, later appellate courts sought to clarify how the ruling may be applied in those cases.

Despite the release of the new regulations, there are still unresolved questions about their practical application. One area of uncertainty is how the guidance will interact with “statutory and regulatory exceptions that explicitly permit differential treatment based on sex.” These exceptions, which allow for actions like the creation of different sex-assigned athletic programs and bathrooms, as long as they cause minimal harm, could significantly impact educational programs.

One of the areas these new regulations will play out is in sex-separated bathrooms and locker rooms. According to the paper, “denying transgender students access to a separated activity or facility (such as a bathroom or locker room) consistent with their gender identity would violate the statute…”

On the same subject, the guidance also, “cautions that requiring students to undergo ‘invasive medical inquiries or burdensome documentation requirements’ to participate in an activity consistent with their gender identity imposes more than de minimis harm.”

The paper also provides Congress with a roadmap for potential new applications of the guidance. To read the full text, click here.