Would Tennessee's HB 2414, requiring students to use restrooms matching the sex on their birth certificate, put schools' Title IX funding at risk?

Plain-English summary

Two state representatives asked whether House Bill 2414 (2016), which would have required Tennessee public schools and universities to assign restrooms and locker rooms based on the sex listed on a student's original birth certificate, would create Title IX problems.

The AG's answer was yes. At the time of the opinion, the U.S. Department of Education was actively interpreting Title IX's prohibition on "sex" discrimination to require schools to allow transgender students access to facilities matching their gender identity. DOE had enforced that interpretation against districts in Illinois (Township High School District 211) and Wisconsin (Arcadia Unified), and the federal government had filed a Statement of Interest taking the same position in G.G. v. Gloucester County School Board. Under the federal Chevron doctrine in force at the time, courts gave deference to DOE's reading. So although the dictionary meaning of "sex" might support HB 2414, the agency that enforces Title IX read the statute differently, and the practical result was that a school complying with HB 2414 risked an enforcement complaint, an adverse OCR finding, and ultimately termination of federal funding.

The opinion was carefully labeled a "risk" assessment. The AG noted that this was an unsettled, evolving area of law; that there were valid legal arguments against DOE's interpretation; and that a future administration could change the interpretation. It also explained that funding is not cut off instantly: under 20 U.S.C. § 1682, DOE must first notify the school and find that voluntary compliance is not possible.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The federal regulatory and enforcement landscape around Title IX and transgender student bathroom access has shifted multiple times across administrations since 2016. Treat this page as historical context, not current legal advice. Verify current Title IX guidance and case law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

HB 2414's two operative sections would have added the following directives to Title 49 of the Tennessee Code: public schools "shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student's original birth certificate," and a parallel directive for public higher education institutions. The bill was patterned after similar legislation enacted in North Carolina around the same time and challenged in Carcano v. McCrory, No. 1:16-cv-236 (M.D.N.C. filed Mar. 28, 2016).

Title IX provides 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." 20 U.S.C. § 1681(a). The statute reaches all operations of a recipient agency under 20 U.S.C. § 1687, as confirmed in Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459 (1999). Title IX expressly permits separate facilities for men and women (20 U.S.C. § 1686) and DOE regulations allow separate restroom and locker facilities so long as the facilities are "comparable" (34 C.F.R. § 106.33).

The interpretive question was what "sex" means. The opinion identified two competing readings:

• The textualist/dictionary reading. "Sex" carries its ordinary meaning, "either of two main categories (male and female) into which humans are divided on the basis of their reproductive functions" (New Oxford American Dictionary). Under that reading, references to "sex" in Title IX refer to biological/anatomical sex. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012), supports using dictionary meaning when a federal statute does not define a term.

• DOE's interpretation. The Department of Education, charged with enforcing Title IX, read "sex" to include gender identity and transgender status. A policy that required a transgender student to use a restroom inconsistent with the student's gender identity was, in DOE's view, sex discrimination based on impermissible sex stereotypes. G.G. v. Gloucester County School Board Statement of Interest, pp. 5-6, 13.

Under Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984), then-controlling administrative-law doctrine, an enforcing agency's reasonable construction of an ambiguous statute received judicial deference. So even though the textualist reading had force, the AG concluded that as a practical matter Tennessee schools could not safely assume a court would override DOE's interpretation.

DOE had translated its interpretation into action. In OCR Case No. 05-14-1055 (Township High School District 211, Illinois, Nov. 2, 2015), DOE found a Title IX violation when the district denied a transgender female student access to the girls' locker room; the district settled rather than risk funding. In OCR Case No. 09-12-1020 (Arcadia Unified, Wisconsin), DOE secured a similar settlement involving a transgender male student. Had those districts refused to settle, they would have faced enforcement proceedings under 20 U.S.C. § 1682.

The funding consequence was real but procedural. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 286 (1998), describes Title IX as a contract between the recipient and the federal government: the federal money comes with a no-discrimination promise. Enforcement runs through notice, an effort at voluntary compliance, and, if those fail, suspension or termination of federal funds. Title IX also creates an implied private right of action that can lead to monetary damages.

The opinion's bottom-line risk assessment: if a transgender student filed a Title IX complaint against a Tennessee district that was enforcing HB 2414, DOE would, under its current interpretation, almost certainly find a violation. The district would then have to choose between abandoning the policy and risking termination of federal funding, "at least until DOE's interpretation is overruled by authoritative and binding judicial decision."

Common questions

Q: Did this opinion stop HB 2414 from being enacted?
A: AG opinions are advisory. The bill's ultimate fate in 2016 was a political decision for the legislature; the opinion identified the legal risk schools and the state would face if it became law.

Q: Why was DOE's interpretation given so much weight even though it wasn't a statute?
A: Under Chevron doctrine as it stood in 2016, courts deferred to an enforcing agency's reasonable construction of an ambiguous statute. The AG therefore treated DOE's reading of "sex" as the practical reality a Tennessee school would face, even though the ordinary dictionary meaning of "sex" cut the other way. (Administrative-deference doctrine has shifted since 2016; see the currency note above and verify current law.)

Q: How fast can a school actually lose federal funding?
A: Not instantly. Under 20 U.S.C. § 1682, DOE must first notify the recipient, attempt to secure voluntary compliance, and then conduct an enforcement proceeding before suspending or terminating funds.

Q: What about the private right of action under Title IX?
A: Gebser v. Lago Vista confirms that Title IX creates an implied private right of action, which can lead to monetary damages against the recipient. So in addition to funding risk, a school enforcing the bill could face individual lawsuits from affected students.

Q: Could a different administration change the analysis?
A: The opinion expressly noted this possibility: "It is also possible that DOE's interpretation is changed or modified in the future under a different administration." That has in fact happened multiple times since 2016.

Citations and references

Statutes and regulations (as cited in the opinion):

• 20 U.S.C. § 1681(a) (Title IX)
• 20 U.S.C. § 1682 (administrative enforcement)
• 20 U.S.C. § 1686 (separate living facilities)
• 20 U.S.C. § 1687 (program-wide coverage)
• 34 C.F.R. § 106.33 (separate but comparable facilities)
• HB 2414, 109th Gen. Assem. (2016)

Cases:

• Carcano v. McCrory, No. 1:16-cv-236 (M.D.N.C. filed Mar. 28, 2016)
• G.G. v. Gloucester Cnty. Sch. Bd., No. 4:15cv54 (E.D. Va.)
• Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012)
• Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459 (1999)
• Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984)
• Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)

Administrative actions:

• OCR Case No. 05-14-1055 (Township High School District 211, Illinois)
• OCR Case No. 09-12-1020 (Arcadia Unified School District, Wisconsin)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-015.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 11, 2016
Opinion No. 16-15
Effect of House Bill 2414, 109th Gen. Assem. (2016), on Title IX Funding

Question 1
Does House Bill 2414, 109th Gen. Assem. (2016), pose a risk of violation of Title IX of
the Education amendments of 1972?

Opinion 1
Yes, if only because the U.S. Department of Education, which is charged with enforcing
Title IX, interprets Title IX to require that transgender students be given access to restrooms and
locker rooms consistent with their "gender identity" instead of their anatomical gender.

Question 2
What is the likely effect of a violation of Title IX on federal funding for public education
in Tennessee?

Opinion 2
If H.B. 2414 is enacted, a public school district or institution of higher learning that
implements that law will be putting its Title IX funding at risk, because a recipient of federal
funding that discriminates in violation of Title IX may lose its federal funding.

ANALYSIS

If enacted, House Bill 2414, 109th Gen. Assem. (2016), would require Tennessee public
schools and institutions of higher learning to require their students to use restrooms and locker
rooms that are assigned for use by persons of the sex indicated on the respective student's birth
certificate. This proposed legislation would have the effect of banning transgender students from
using restrooms and locker rooms that are consistent with their gender identity or expression.

Legislation very similar to H.B. 2414 has just been enacted in North Carolina and already
faces a legal challenge. See Carcano v. McCrory, U.S. Dist. Ct., M.D. N.C., No. 1:16-cv-236,
filed 3/28/16. The North Carolina legislation requires local boards of education to ensure that
every "multiple occupancy bathroom or changing facility . . . be designated for and used only by
students based on their biological sex." It defines "biological sex" as the condition of being male
or female as stated on a person's birth certificate. The plaintiffs have challenged that legislation
as violative of the federal equal protection clause because it discriminates on the basis of sex by
treating transgender people differently from non-transgender people, violative of federal
substantive due process rights because it infringes on the privacy rights of transgender people by
requiring them to disclose personal information to anyone who sees them using a facility that is
inconsistent with their gender expression, and violative of Title IX of the Education Amendments
of 1972 because it discriminates on the basis of sex.

1. Violation of Title IX

Tennessee's H.B. 2414, if enacted, would be subject to similar legal challenges, including
a claim that it violates Title IX. Discrimination on the basis of sex is a violation of Title IX. If
H.B. 2414 is found to discriminate on the basis of sex, it would be a violation of Title IX.

Title IX provides 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." 20 U.S.C.A. § 1681(a).
Title IX applies to institutions that receive federal financial assistance, including state and local
educational agencies such as local school districts and postsecondary institutions. To protect
against discrimination based on sex in education programs and activities, Title IX requires
educational programs and activities that receive federal funds to operate in a nondiscriminatory
manner or forfeit their federal funding.

As a general rule, if a state agency such as a public school or institution of higher learning
directly or indirectly receives federal financial assistance and conducts an education program or
activity that benefits from this assistance, the state agency must comply with Title IX throughout
the operations of its entire agency. 20 U.S.C.A. § 1687; Nat'l Collegiate Athletic Ass'n v. Smith,
525 U.S. 459, 465-6 (1999). Title IX generally requires that males and females be treated equally,
but educational institutions are allowed to keep "separate living facilities for the different sexes."
20 U.S.C.A. § 1686. And educational institutions may provide separate restroom and locker room
facilities for the different sexes as long as the facilities for each sex are "comparable." 34 C.F.R.
§ 106.33.

"Sex" is not defined in Title IX or its regulations. When a federal statute does not define
a word, courts may look to the dictionary definition of the word to determine congressional intent.
See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2169 (U.S. 2012). The ordinary
dictionary meaning of "sex" is "either of two main categories (male and female) into which
humans . . . are divided on the basis of their reproductive functions." New Oxford American
Dictionary, 3rd ed. Thus, references to "sex" in Title IX may be read as references to male and
female as determined by a person's biological, anatomical reproductive organs.

But the U.S. Department of Education ("DOE"), the federal agency charged with enforcing
Title IX, has a different interpretation. DOE says that the "plain language [of Title IX] protects
all persons, including transgender students, from sex discrimination," and interprets "sex" as being
"broad and encompass[ing] gender identity, including transgender status," so that a policy
requiring a transgender student to use a restroom inconsistent with the student's gender identity is
"based on impermissible sex stereotypes." G.G. v. Gloucester Co. Sch. Bd., U.S. Dist. Ct., E. D.
Va., Newport News Div., Civil No. 4:15cv54, Statement of Interest of the United States filed
6/29/15, pp. 5, 6, 13. In other words, DOE takes the position that a policy or law that prohibits a
student from using a restroom consistent with his or her gender identity is discrimination based on
sex and, therefore, violates Title IX.

In short, according to DOE, "[a]ll students, including transgender students and students
who do not conform to sex stereotypes, are protected from sex-based discrimination under Title
IX." Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and
Extracurricular Activities at 25. And DOE interprets Title IX to require that transgender students
be given access to restrooms and locker rooms consistent with their "gender identity" instead of
their anatomical gender. G.G. v. Gloucester Cnty. Sch. Bd., supra, Statement of Interest of the
United States, pp. 7-8.

DOE has in fact enforced that interpretation of Title IX when called upon to investigate
school districts for not allowing transgender students to use restroom or locker room facilities
assigned to the sex with which the student identifies. A transgender student who was born male
and remained an anatomical male but lived as a female filed a complaint against the Township
High School District 211 in Illinois for not allowing the student to use the girls' locker room,
although it allowed the student to be treated as female in all other respects. Finding discrimination
based on sex, DOE required the school district to allow the transgender student to use the girls'
locker room and to install curtains to protect the privacy of any student who wanted privacy.
Rather than lose its federal funding, the school district settled the complaint on those terms. A
biological female who identified as a male filed a similar complaint against the Arcadia Unified
School District in Wisconsin and obtained a similar result. DOE again took the position that the
student must be allowed to use the facilities of her gender identity rather than her anatomical
gender, and the school district settled on those terms to protect its federal funding. Had these
school districts not agreed to allow the transgender students to use the facilities consistent with
their "gender identity," they would have jeopardized their federal funding.

When an administrative agency such as DOE is charged with enforcement of a statute, the
agency's construction of the statute, while not binding on the courts, is given deference by courts.
Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844 (1984). Thus,
DOE's statements about its interpretation of the law, e.g., its Statement of Interest, its various
publications, its Letters and Resolutions, while not controlling law, will be accorded judicial
deference.

There well may be valid legal arguments against DOE's interpretation, but there is no
settled precedent to provide guidance as to how a court may ultimately rule; this is a new,
undeveloped, and evolving area of the law. It is also possible that DOE's interpretation is changed
or modified in the future under a different administration. But, as things currently stand, we must,
as a practical matter, assume that H.B. 2414 would violate Title IX, because the enforcer of Title
IX has clearly interpreted, and enforced, Title IX to prohibit as "discriminatory on the basis of
sex" what H.B. 2414 is designed to accomplish.

2. Effect on Federal Funding

It follows that a public school district or institution of higher learning that complied with
H.B. 2414 could find its Title IX funding in jeopardy. "Congress enacted Title IX in 1972 with
two principal objectives in mind: to avoid the use of federal resources to support discriminatory
practices and to provide individual citizens effective protection against those practices." Gebser
v. Lago Vista Indep. School Dist., 524 U.S. 274, 286 (1998). "The express statutory means of
enforcement is administrative: The statute directs federal agencies who distribute education
funding to establish requirements to effectuate the nondiscrimination mandate, and permits the
agencies to enforce those requirements through 'any . . . means authorized by law,' including
ultimately the termination of federal funding." Id. at 280. Title IX is also enforceable through an
implied private right of action that may give rise to monetary damages. Id.

Title IX operates as a contract with recipients of federal funding for educational programs.
Id. at 286. The offer of federal funding is conditioned on the promise by the recipient not to
discriminate. Id. Although Title IX permits agencies who disburse education funding to enforce
its non-discrimination mandate through proceedings to suspend or terminate funding, an agency
may not initiate enforcement proceedings until it "has advised the appropriate person or persons
of the failure to comply with the requirement and has determined that compliance cannot be
secured by voluntary means." 20 U.S.C. § 1682. Thus, if compliance with H.B. 2414 is found to
be a violation of Title IX, federal funding would not be immediately suspended or terminated. The
alleged offender would be afforded the opportunity voluntarily to come into compliance before
funding is suspended or terminated. Id.

In sum, if a transgender student is required by a school district in Tennessee to use a
restroom or locker room facility that is consistent with his or her anatomical gender rather than his
or her gender expression or gender identity, and if that student files a complaint, DOE, applying
its current interpretation of Title IX, will almost certainly require the school district to permit the
student access to the facility consistent with his or her gender expression, and refusal to do so
could very well result in loss of federal funding, at least until DOE's interpretation is overruled
by authoritative and binding judicial decision.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Mike Stewart
State Representative
17 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Harry Brooks
State Representative
117 War Memorial Building
Nashville, Tennessee 37243