Unpacking the Title IX Chaos: Are Single-Sex Spaces Allowed?

This fall, as daughters wave farewell and head to school, parents and administrators may well wonder whether “daughters” exist at all as a definable category in our law, and whether these girls have or should have access to single-sex spaces. This uncertainty is driven by conflicting court decisions across the country, with some courts interpreting Title IX to require males who identify as girls to be included in girls’ spaces, and some forbidding that interpretation.

Here’s where we stand. 

Title IX of the Education Amendments Act of 1972 provides broadly 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.” On its face, this could be read to dismantle sex-separation entirely, though the Senate sponsor of the legislation vigorously explained this was not the case. Both the law and contemporaneous regulations provide numerous carve-outs for sex-based treatment, including housing, bathrooms and locker rooms, and athletics.

Based on this contemporaneous evidence of the meaning of Title IX’s text, one would surmise sex-specific spaces are lawful, and even that they might be mandatory in some instances.

But schools have faced legal liability for this understanding. In the Fourth Circuit, for example, maintaining a single-sex bathroom violates Title IX. That court held that a school may create single-sex bathrooms (noting the regulation), but it said the school must permit gender identity-based access. While the dissent noted that this in fact undercuts the purpose of the single-sex bathroom—recognizing “the physical differences between males and females and the resulting need for privacy”—the majority merely mocked the dissent for lamenting “some emotional, intangible loss wrought by the mere presence of transgender persons.”

Likewise, the Seventh Circuit has held that “[a] 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.”

On the flip side, 26 states and other organizations have secured injunctive relief against new rules incorporating the notion that Title IX requires identity-based treatment. The Biden-Harris administration issued a regulation in April 2024 interpreting “discrimination on the basis of sex” to mean discrimination on the basis of “gender identity,” and requiring access to sex-specific spaces on the basis of gender identity. Reviewing courts have determined that Title IX “expressly protects female-specific spaces and opportunities in education.” They have concluded that “the language Congress employed presumes that males and females will be separated based on biological sex.” Further, “[t]he DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education.”

This leaves schools in Indiana, Virginia, South Carolina, and West Virginia in a strange position. They are subject to the Fourth and Seventh Circuit decisions interpreting Title IX to require gender identity-based treatment, but the injunction against federal enforcement of identity-based treatment also applies in their states. In other words, in those states, a student could bring a private right of action against a school for identity-based access (pursuant to circuit precedent), but the federal government cannot enforce identity-based access (through its funding mechanism).

Moreover, courts will soon decide whether Title IX means the government must establish sex-based protections in sports, locker rooms, and bathrooms. In Gaines v. NCAA, for example, female swimmers who were forced to change and compete alongside a biological male argue that Title IX forbids male access to the women’s locker room, and that the NCAA’s failure to follow that rule “undermined the competitive seasons, mental and emotional health and well-being, bodily privacy, and academic and athletic experiences of hundreds of female swimmers.” A female swimmer testified that having a male in her changing room “had a ‘negative impact’ on her . . . as she had to try to ‘mentally multi-task’ to figure out how . . . to maintain privacy while she was preparing to compete.”

The Supreme Court has not provided needed clarity, but a recent order indicates that the Justices think Title IX does not address gender identity. In response to the Biden-Harris administration’s request to stay an injunction so that it could largely implement its Title IX regulation, the Supreme Court unanimously said no: “all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to . . . the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.”

How is a school administrator supposed to sort through this mess? 

They probably won’t even try.

Numerous schools, despite absolutely no federal mandate to allow males who identify as girls to use girls’ locker rooms will do so regardless (I personally know of several), and they’ll tell parents the law requires them to. And parents—unable to wade through precedent, evaluate circuit splits, and distinguish between private rights of action and regulatory authority—will have no recourse.

State attorneys general should not take their injunctions and go home. School decision-makers and citizens should be informed of the contours of the law. And parents should be empowered to have educated conversations about Title IX’s protections for their daughters.