Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
July 6, 2023
OAG 23 - 04
Subjects:
1. Whether Senate Bill 150 allows school districts to choose
whether to offer curriculum that either (1) prohibits children in
grades five and below to receive instruction on human sexuality
or sexually transmitted diseases; or (2) prohibits any child
regardless of age to receive instruction with the goal of exploring
gender identity, gender expression, or sexual orientation.
2. Whether a school district would violate Title IX of the
Education Amendments of 1972 by implementing the provisions
of Senate Bill 150 concerning preferred pronoun policies and
policies concerning the use of facilities including restrooms, locker
rooms and shower rooms in public schools.
Written by:
Jeremy J. Sylvester, Assistant Attorney General
Syllabus:
1. Senate Bill 150 does not permit school districts to choose one of
its two restrictions on curricula content. The law prohibits not
only instruction on human sexuality or sexually transmitted
diseases for children in grades 5 or below, but also instruction, for
any grade level, on gender identity, gender expression, or sexual
orientation.
2. Neither existing binding legal precedent nor statutory or
regulatory law holds or declares that a school district would
violate Title IX by implementing Senate Bill 150’s provisions
concerning preferred pronoun policies and policies concerning theOpinion of the Attorney General 23-04
July 6, 2023
Page 2
2
use of facilities including restrooms, locker rooms and shower
rooms in public schools.
Opinion of the Attorney General
During the 2023 regular session, the Kentucky General Assembly enacted
Senate Bill 150, overriding a veto from the Governor. See 2023 Ky. Acts, Ch. 132. The
law addresses multiple topics governing the operation of public schools, including
limiting instruction on gender identity and sexual orientation, establishing parental
notification rights, prohibiting required or recommended preferred pronoun usage
policies, and restricting a person of one biological sex from using the restrooms, locker
rooms, or shower rooms designated for the opposite biological sex.1 This opinion
addresses concerns arising from a guidance document issued by the Kentucky
Department of Education (KDE) on April 17, 2023, which the KDE later updated on
June 5, 2023. The update to the guidance document offers the KDE’s heavily revised
interpretation of Section 2 of the law suggesting that school districts have the choice
to obey only one of two legislative prohibitions relating to public school curricula for
human sexuality or sexually transmitted diseases. The guidance document also
suggests that school districts risk violating Title IX if they implement the provisions
of the law addressing restrooms, locker rooms, showers rooms, and preferred pronoun
usage.
Both versions of the KDE guidance document discussed Section 2 of Senate
Bill 150. Section 2 amended KRS §158.1415 to place restrictions on public-school
instruction regarding human sexuality or sexually transmitted diseases. At issue
here is the following statutory text:
(1) If a school council, or, if none exists, the principal adopts a curriculum
for human sexuality or sexually transmitted diseases, instruction shall
include but not be limited to the following content: [. . .]
(d) A policy to respect parental rights by ensuring that:
1. Children in grade five (5) and below do not receive any instruction
through curriculum or program on human sexuality or sexually
transmitted diseases; or
2. Any child, regardless of grade level, enrolled in the district does not
receive any instruction or presentation that has a goal or purpose of
students studying or exploring gender identity, gender expression, or
sexual orientation; and
1 The bill also prohibited puberty blockers, cross-sex hormones, and surgeries for the treatment of
gender dysphoria in minors.Opinion of the Attorney General 23-04
July 6, 2023
Page 3
3
(e) A policy to notify a parent in advance and obtain the parent’s written
consent before the parent’s child in grade six (6) or above receives any
instruction through curriculum or programs on human sexuality or
sexually transmitted diseases authorized in this section.
KRS §158.1415(1).
The April 2023 KDE guidance document only briefly discusses Section 2 of
Senate Bill 150 but refers the reader to another document entitled “Senate Bill 150
(2023) Section Two Supplemental Guidance.”2 This supplement delineated the bill’s
requirements for Kindergarten through Grade 5 compared to Grades 6 through 12.
This supplement clearly stated that no children in Grades 5 and below should “receive
any instruction through curriculum or programs on human sexuality or sexually
transmitted diseases.” Moreover, children in this group (Grades 5 and below) were
also prohibited from receiving “any instruction or presentation on gender identity,
gender expression or sexual orientation.” The supplemental guidance states that the
curriculum for Grades 6 through 12 may include instruction on human sexuality and
sexually transmitted disease subject to advance parental notice and consent.
However, the supplement again emphasized that these students may not “receive any
instruction or presentation that has a goal or purpose of students studying or
exploring gender identity, gender expression or sexual orientation.”
Less than two months after issuing its supplement discussing Section 2 of
Senate Bill 150, the KDE inexplicably issued a revised guidance document radically
altering its prior guidance to school districts.3 The KDE claimed that the “or” between
KRS 158.1415(1)(d)(1) and (d)(2) allows a school district to choose which one of those
two prohibitions apply to its curriculum on human sexuality or sexually transmitted
diseases.4 As an example, the guidance document posits that a school district
choosing to prohibit instruction with the goal or purpose of studying gender identity,
gender expression, or sexual orientation can still instruct children of any age on other
topics of human sexuality and sexually transmitted diseases.5
The updated KDE guidance document also suggests that Section 5(b) of Senate
Bill 150 would violate Title IX, if implemented. Section 5(b) prohibits the KDE or
Kentucky Board of Education from recommending or requiring “policies and
procedures for the use of pronouns that do not conform to a student’s biological sex.”
2023 Ky. Acts, Ch. 132, § 5(b). Similarly, “[a] local school district shall not require
2 A copy of this supplemental guidance document is available at: https://perma.cc/WHD8-RBT7.
3 A copy of this revised guidance documents entitled 2023 Legislative Guidance-Emergency Bills is
available at: https://perma.cc/47W5-QH5X.
4 Id., at pp. 9 – 10.
5 Id., at p. 10.Opinion of the Attorney General 23-04
July 6, 2023
Page 4
4
school personnel or students to use pronouns for students that do not conform to that
particular student’s biological sex.” Id. at § 5(b).
Last, the updated KDE guidance document implies that Section 3 of Senate
Bill 150 would violate Title IX, if implemented. Section 3 requires local school and
charter school boards to adopt policies that “shall, at a minimum, not allow students
to use restrooms, locker rooms, or shower rooms that are reserved for students of a
different biological sex.” Id. at § 3. A student who asserts that his or her gender does
not conform with his or her biological sex and whose parents or legal guardian
provides consent, “shall be provided with the best available accommodation.” Id. at §
4(a). Acceptable accommodations may include “access to single-stall restrooms or
controlled use of faculty bathrooms, lockers rooms, or shower rooms.” Id. at § 4(a).
Following its summary of Senate Bill 150’s provisions governing policies on
preferred pronouns, restrooms, locker rooms and shower rooms, the KDE strongly
suggested these provisions violated Title IX by stating:
School districts should remain aware of the legal landscape applicable
to transgender students, including current and proposed Title IX
regulations. The United States Court of Appeals for the Sixth Circuit
previously held: “Under settled law in this Circuit [which includes
Kentucky], gender nonconformity as defined in Smith v. City of Salem,
is an individual’s ‘fail[ure] to act and/or identify with his or her
gender…. Sex stereotyping based on a person’s gender non-conforming
behavior is impermissible discrimination.” Dodds v. United States
Department of Education, 845 F.3d 217, 221 (2016).
After making this statement, KDE concluded that school districts should consult with
board counsel for legal advice for potential liability concerns. The implication of this
statement is that school districts risk financial harm, either in the form of legal
liability to pay monetary damages in private Title IX actions or in the loss of federal
funding, if they comply Senate Bill 150.6
I.
KDE’s most recent interpretation of Section 2 of Senate Bill 150 is
incorrect.
The KDE correctly interpreted Section 2 of Senate Bill 150 the first time. The
KDE’s revised interpretation of Section 2 of Senate Bill 150 is incorrect. First, it fails
to account for the use of the disjunctive “or” in the context of prohibitions. And second,
6 At least one news reporter drew this conclusion as well. Krista Johnson, Why Kentucky schools that
follow state anti-trans law may run afoul of federal laws, Courier Journal (Apr. 24, 2023).Opinion of the Attorney General 23-04
July 6, 2023
Page 5
5
the KDE’s interpretation would render part of the statute meaningless, creating an
absurd result that is clearly contrary to what the legislature intended.
The intent of the legislature is clear from the text of Section 2. See Chilton v.
Gividen, 246 S.W.2d 133, 135 (“[A] statute will be construed so as to accomplish the
purpose for which it was enacted.”). When read in proper context, KRS
§158.1415(1)(d) seeks to ensure school districts respect parental rights by prohibiting
two things: either (1) instruction on human sexuality or sexually transmitted diseases
to students in grades 5 or below; or (2) instruction or presentations to students of any
age that have the goal or purpose of students studying or exploring gender identity,
gender expression, or sexual orientation. Because the legislature was stating basic
prohibitions, its use of the disjunctive “or” in this section of the statute means that
both things connected by the disjunctive are prohibited. Antonin Scalia and Bryan A.
Garner, Reading Law: The Interpretation Legal Texts, 119 (West 2012). KDE seemed
to have applied basic canon of construction in its April guidance documents.
Even if the intent of the legislature in using “or” were not clear7, “courts have
the ultimate responsibility” in matters of statutory construction, not agencies. Gilbert
v. Commonwealth, 291 S.W.3d 712, 716 (Ky. App. 2008) (citing Delta Air Lines, Inc.
v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14, 20 (Ky. 1985)). Kentucky “courts
have said ‘[n]ot the literal language but the true intention or will of the Legislature
is the law.’” Hardwick v. Boyd Cnty. Fiscal Ct., 219 S.W.3d 198, 201 (Ky. App. 2007)
(quoting Asher v. Stacy, 185 S.W.2d 958, 959 (Ky. 1945)); see also Cosby v.
7 Commissioner Glass (or his lawyers) must know the legislative intent behind Section 2, because he
stated repeatedly (at least 8 times) during a recent interview on Kentucky Tonight that the “or” was
a “mistake.” See “SB 150 and LGBTQ Issues”, available at https://ket.org/program/kentucky-
tonight/sb-150-and-lgbtq-issues/ (last viewed July 5, 2023).
1:39 – “That’s the language in the bill, so it wasn’t our determination to use the word ‘or,’ that is the
de facto language that is in the statute.”
1:53 – “We started hearing from attorneys that represent school districts and they really pointed out
that error… We now know it’s an error based on the reaction that we are seeing from the Senate
GOP and the Kentucky GOP… But it’s been brought to us from those attorneys in pointing out that
error.”
2:45 – “Its clear the legislators made an error here and the right thing for them to do… When I make
an error I accept responsibility for it and straighten it out. They have the opportunity to do that in
the next session. I’m sure they will correct this error.”
3:09 – “It’s almost surprising there aren’t more errors with the speed and undercover darkness that
this moved through.”
4:07 – “It doesn’t seem like they are owning up to it…. It seems like based on their reaction their
intent was for it to be ‘and’ and the right thing for them to do in the next session is to go ahead and
correct the error.”Opinion of the Attorney General 23-04
July 6, 2023
Page 6
6
Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004) (“The legislature’s intention shall be
effectuated, even at the expense of the letter of the law.” (citation omitted)); KRS
446.080(1) (“All statutes of this state shall be liberally construed with a view to
promote their objects and carry out the intent of the legislature. . ..”). In carrying out
their duty to construe statutes, courts may revise “or” to “and” and vice versa,
“whenever such conversion is required, inter alia, to effectuate the obvious intention
of the Legislature and to accomplish the purpose or object of the statute.” Duncan v.
Wiseman Baking Co., 357 S.W.2d 694, 698 (Ky. 1961) (observing that the “popular
use of the words ‘or’ and ‘and’ is loose and frequently inaccurate); see also, Boron Oil
Co. v. Cathedral Found., Inc., 434 S.W.2d 640, 641 (Ky. 1968) (noting that this
practices is permissible when it is “obvious that the intent of the legislature would be
thwarted if the change were not made.”). In doing so, “an interpretation which will
lead to an absurd result will be avoided.” Chilton, 246 S.W.2d at 135.
Such an interpretative conversion of “or” to “and” would be appropriate here to
avoid the absurd interpretation KDE has now proffered. Under the KDE’s reckoning,
if a school district chooses to forgo instruction on gender identity, gender expression,
and sexual orientation, it is free to teach about all other aspects of human sexuality
and sexually transmitted diseases to children of any age. Moreover, KDE’s flawed
interpretation cannot be harmonized with several other provisions of Senate Bill 150.
See Jefferson Cnty. Bd. of Ed. v. Fell, 391 S.W.3d 713, 719 (Ky. 2012) (“The particular
work, sentence or subsection under review must also be viewed in context rather than
in a vacuum; other relevant parts of the legislative act must be considered in
determining the legislative intent.”); Lewis v. Jackson Energy Co-op. Corp., 189
S.W.3d 87, 92 (Ky. 2005) (“The statute must be read as a whole and in context with
other parts of the law.”). KRS §158.1415(1)(e) provides for advance parental
notification and consent before any child in grade six or above receives any
instruction through curriculum or programs about human sexuality or sexually
transmitted diseases.
This provision clearly contemplates that KRS §158.1415(1)(d)(1) prohibits all
such instruction to grades 5 and below rather than leaving it to the school districts to
decide whether they will do so. If this were not the case, explicit or graphic instruction
could be presented to kindergartners as a part of curriculum on prevention of sexually
transmitted diseases without prior parental notification or consent, while parental
consent would be required to present the same material to high schoolers. That is
both perverse and non-sensical. It is also obvious the General Assembly intended to
prohibit all instruction that has as its goal or purpose students studying or exploring
gender identity, gender expression, or sexual orientation because there is no
reference to these topics in other provisions concerning parental notice and consent
(see KRS §158.1415(1)(e)) or the requirement to offer alternative instruction on
human sexuality (see KRS §158.1415(3)). This omission is entirely consistent withOpinion of the Attorney General 23-04
July 6, 2023
Page 7
7
the purpose of the Act to completely prohibit instruction on these topics under KRS
§158.1415(1)(d)(2).
Based on the foregoing, it is the opinion of the Attorney General that Section
2 of Senate Bill 150 prohibits school districts from offering any instruction to children
in grades 5 and below on the topics of human sexuality or sexually transmitted
diseases. Moreover, school districts are prohibited from providing instruction
exploring gender identity, gender expression, or sexual orientation to students in any
grade. School districts are not given the option as to which of these prohibitions they
are required to implement.
II.
No binding precedent, statutory or regulatory law establishes that
implementation of Senate Bill 150 would violate Title IX.
Because the KDE guidance (both the April guidance and the revised June
guidance) is overly simplistic and fails to provide any guidance at all, this Office must
advise on Title IX’s requirements and how they may relate to Senate Bill 150. In the
opinion of the Attorney General, a school district’s implementation of Senate Bill 150
does not constitute a Title IX violation under any existing, binding legal precedent or
statutory or regulatory law.
A. Title IX prohibits discrimination “on the basis of sex.”
Title IX was enacted in 1972 to ensure women and girls are provided equal
access to educational opportunities. The operative provision of Title IX provides:
No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subject to
discrimination under any education program or activity receiving
Federal financial assistance.
20 U.S.C. § 1681(a). Although “sex” is not defined by statute, the term refers to the
biological differences between male and female. Adams v. Sch. Bd. of St. Johns Cnty.,
57 F.4th 791, 812–814 (11th Cir. 2022); Notice of Final Rule, 85 Fed. Reg. 30026,
30178 (May 19, 2020) (“Title IX and its implementing regulations include provisions
that presuppose sex as a binary classification.”). See also, Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 632 (4th Cir. 2020)(Niemeyer, J. dissenting) (noting that “sex”
refers to the “physiological distinctions between males and females”).
Not all differential treatment on the basis of sex constitutes prohibited
discrimination under Title IX. Meriwether v. Hartop, 992 F.3d 492, 510, n.4 (6th Cir.
2021). For example, Congress declared that nothing in Title IX “shall be construed to
prohibit [schools] from maintaining separate living facilities for the different sexes.”
20 U.S.C §1686. The implementing regulations also state that schools “may provideOpinion of the Attorney General 23-04
July 6, 2023
Page 8
8
separate toilets, locker room, and shower facilities on the basis of sex,” so long as the
“facilities provided for students of one sex [are] comparable to such facilities provided
for students of the other sex.” 34 C.F.R. § 106.33. Moreover, schools may “operate or
sponsor teams for members of each sex where selection for such teams is based on
competitive skill or the activity involved is a contact sport.” Id at § 106.41(b). Title IX
thus underscores that “[p]hysical differences between men and women … are
enduring” and the “two sexes are not fungible” but rather have “inherent differences.”
United States v. Virginia, 518 U.S. 515, 533 (1996) (Ginsberg, J.) (cleaned up)
(quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).
Although not explicitly stated in the statute, Title IX also prohibits sexual
harassment and abuse of students. Title IX’s implementing regulations require
schools to investigate complaints of harassment and abuse and take appropriate steps
to prevent it. 34 C.F.R. §§ 106.44, 106.45. A student subject to sex abuse or
harassment by an employee or another student at a school may also bring a private
cause of action against the school to collect damages. Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 285 (1998) (dealing with misconduct by teacher); Davis v. Monroe
Cnty. Bd. of Ed., 526 U.S. 629 (1999) (dealing with student-on-student harassment).
To prevail in a suit against the school, a plaintiff must prove that “1) [the plaintiff]
was subjected to a quid pro quo sexual harassment or a sexually hostile work
environment; [2)] [the plaintiff] provided actual notice of the situation to an
‘appropriate person,’ who was, at a minimum, an official of the educational entity
with authority to take corrective action and to end discrimination; and [3] the
institution’s response to the harassment amounted to ‘deliberate indifference.’”
Klemencic v. Ohio St. Univ., 263 F.3d 504, 510 (6th Cir. 2001) (citation omitted). For
hostile work environment claims, the plaintiff must also demonstrate the sexual
harassment was “so severe, pervasive, and objectively offensive that it could be said
to deprive the plaintiff of access to the educational opportunities and benefits
provided by the school.” Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999) (citing to
Davis, 119 S. Ct. at 1666–71).
B. No binding precedent holds that unlawful discrimination “on the
basis of sex” under Title IX includes disparate treatment of those
asserting a gender identity that does not conform with their sex.
In the past decade, courts began tackling the issue of whether discrimination
against employees whose gender identity does not conform to their biological sex
constitutes unlawful sex discrimination under Title VII, which prohibits adverse
employment actions against the employee “because of” the employee’s “sex.” 42 U.S.C.
§ 2000e-2(a). Both the United States Supreme Court and the Sixth Circuit Court of
Appeals have held that taking adverse employment actions against an employee for
not conforming to certain stereotypes associated with the employee’s biological sex
constitutes unlawful sex discrimination under Title VII. See e.g., Bostock v. ClaytonOpinion of the Attorney General 23-04
July 6, 2023
Page 9
9
County, 140 S. Ct. 1731 (2020) (holding that Title VII prohibits an employer from
firing an employee for being homosexual or gender non-conforming); Smith v. City of
Salem, 378 F.3d 729 (6th Cir. 2005) (holding that termination of employee based on
gender transition constitutes sex-based discrimination); EEOC v. R.G. & G.R. Harris
Funeral Homes, Inc., 884 F.3d. 560 (6th Cir. 2018) (same). These cases interpreting
Title VII are binding in Kentucky.
These Title VII cases, however, have not been extended to the Title IX context.
The KDE guidance elides this point. The Bostock majority expressly noted that “other
federal or state laws that prohibit sex discrimination” were not “before” the Court;
and refused to “prejudge” any such question about what those statutes require.
Bostock, 140 S. Ct. at 1753. Even more specifically, the Court stated, “we do not
purport to address bathrooms, locker rooms, or anything else of the kind.” Id. The
Sixth Circuit Court of Appeals issued similar warnings. See Meriwether, 992 F.3d at
510, n. 4 (“[I]t does not follow that principles announced in the Title VII context
automatically apply in the Title IX context.”); Pelcha v. MW Bancorp, Inc., 988 F.3d
318, 324 (6th Cir. 2021) (“[T]he rule in Bostock extends no further than Title VII.”).
There is currently a split of authority among the federal circuit courts
regarding whether Title IX prohibits discrimination based on gender nonconformity
in all contexts. Ruling en banc, the Eleventh Circuit Court of Appeals recently held
that the term “sex” in Title IX means biological sex and therefore segregation of
restroom facilities based on biological sex is specifically allowed under existing
regulations. Adams, 57 F.4th at 812–814. The Fourth and Seventh Circuit Courts of
Appeal, however, have interpreted Title IX under the same sex-stereotyping
framework used in Title VII cases. See Grimm, 972 F.3d at 617–18 (finding a violation
of Title IX to deny a biological male student who identified as female access to the
girl’s restroom); 8 Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 1047–1050
(7th Cir. 2017) (concluding the same regarding a biological male student who had
been denied access to the girl’s restroom).9
The United States Department of Education also recently sought to amend
Title IX regulations to address gender incongruent persons. Notice of Proposed Rule
8 The first Fourth Circuit Court of Appeals decision in this case gave deference to a Department of
Education letter opining that Title IX requires school to allow students to use the sex-segregated
bathroom consistent with their asserted gender identity. Grim v. Gloucester Cnty. Sch. Bd., 822 F.3d
709 (4th Cir. 2016). The United States Supreme Court then issued of a stay of the injunction entered
in favor of the plaintiff based, in part, on this letter, see Gloucester Cnty. Sch. Bd. v. Grimm, 136 S. Ct.
2442 (2016), and then vacated judgment and remanded the case back to the Fourth Circuit for further
consideration of a Title IX guidance document issued by the Department of Education under a new
administration, see Gloucester, 137 S. Ct. 1239 (2017). After the Fourth Circuit Court of Appeals found
in favor of the plaintiff again, the United States Supreme Court denied writ of certiorari on June 28,
2021. Gloucester Cnty. Sch. Bd. v. Grimm, 141 S. Ct. 2878 (2021).
9 The United States Supreme Court dismissed a petition for writ of certiorari upon agreement of the
parties. Whitaker v. Kenosha Unified Sch. Dist., 138 S. Ct. 1260 (2018).Opinion of the Attorney General 23-04
July 6, 2023
Page 10
10
Making, 87 Fed. Reg. 41390 (July 12, 2022). These proposed regulations reflect a shift
in policy and ideology regarding what it means to discriminate “on the basis of sex”
in the context of Title IX. However, proposed regulations are not binding law.
Moreover, the views on how Title IX’s ban on sex discrimination should apply to
gender incongruent students change from administration to administration.10 At the
very least, this back-and-forth interpretation of Title IX on the issue of gender
identity indicates how unsettled the law is.
C. Neither existing binding legal precedent nor statutory or regulatory
law holds or declares that a school district would violate Title IX by
implementing Senate Bill 150’s provisions concerning the use of
facilities including restrooms, locker rooms and shower rooms in
public schools.
Students who claim their gender does not conform with their biological sex
have mounted legal challenges against policies requiring them to use the sex-
segregated restroom aligning with their biological sex. The Fourth and Seventh
Circuit Courts of Appeal have held that enforcement of these polices against these
individuals violates Title IX’s prohibition on sex-based discrimination under the sex-
stereotyping theory advanced by Bostock. See Grimm, 972 F.3d at 616–19; Whitaker,
858 F.3d at 1047–1050. But the Eleventh Circuit Court of Appeals has held that
restricting restroom use by biological sex rather than the asserted gender identity of
a student did not amount to illegal sex discrimination under Title IX. Adams, 57 F.4th
at 811–14. The United States Supreme Court explicitly stated that it has yet to weigh
in on this specific issue. Bostock, 140 S. Ct. at 1753.
The Sixth Circuit Court of Appeals has also not issued a definitive ruling
suggesting that a school district implementing Senate Bill 150’s provisions governing
restrooms, locker rooms, and shower rooms would constitute a violation of Title IX.
The Dodds case, which is cited in the KDE guidance, addressed a school district’s
motion to stay an injunction entered in a district court in Ohio on behalf of an eleven-
year-old special needs student who was suicidal. That injunction allowed the student
10 See e.g., February 22, 2017 Dear Colleague Letter (withdrawing Obama administration letters
opining that Title IX required access to sex-segregated facilities based on gender identity), available
at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-tit….; Memorandum for
Kimberly M. Richey Re: Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (concluding that Title IX does
not prohibit certain practices such as referring to students by pronouns matching their biological sex
or restricting access to sex-segregated restrooms based on biological sex), available at
https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-mem…;
President Biden’s Exec. Order No. 13, 988, 86 Fed. Reg. 7,023 (Jan. 20, 2021) ("Under Bostock’s
reasoning, laws that prohibit sex discrimination—including Title IX of the Education Amendments of
1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.),
and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their
respective implementing regulations—prohibit discrimination on the basis of gender identity or sexual
orientation, so long as the laws do not contain sufficient indications to the contrary.”)Opinion of the Attorney General 23-04
July 6, 2023
Page 11
11
to use the restroom aligning with the student’s self-identified gender. Dodds, 845
F.3d. at 220–21. A panel of the Sixth Circuit Court of Appeals, after weighing the
equities of the case, allowed the injunction to remain in place. Believing that the
unique procedural posture and facts of the Dodds case did not make it binding
precedent, the United Stated District Court for the Middle District of Tennessee ruled
that a Tennessee law restricting use of sex-separated restrooms and changing rooms
according to biological sex did not violate Title IX. D.H. v. Williamson Cnty. Bd. of
Ed., 2022 W.L. 16639994 (M.D. Tenn. Nov. 2, 2022). The Sixth Circuit Court of
Appeals has yet to rule on that appeal.
The Office also believes that a challenge to Senate Bill 150’s restrictions on the
use of locker rooms and shower rooms to students of the same biological sex requires
a different analysis than has been employed by cases addressing restrooms only.
Some of the cases involving restrooms discounted the privacy interests of students
because the restrooms had stalls with doors. Whitaker, 858 F.3d at 1052 (“[restroom
policy] ignores the practical reality of how [the student] … uses the bathroom: by
entering a stall and closing the door”); Grimm,972 F.3d at 613–14 (agreeing with
Whitaker on the issue of privacy). But locker rooms and shower rooms typically
involve groups of students gathered in a complete state of undress where the
anatomical and physiological differences between the biological sexes is patent. In
this Office’s opinion, courts within the Sixth Circuit may be hesitant to find that Title
IX requires middle and high school girls to undress and shower in the presence the
boys they will sit next to in English class later that same day. See Williamson Cnty.
Bd. of Ed., 2022 W.L. 16639994 at *9 (acknowledging privacy interests of other
students in restroom).
As stated above, the Department of Education has recently proposed Title IX
regulation amendments. 87 Fed. Reg. 41390. These proposed amendments include a
revision to 34 CFR §106.31(a):
(2) In the limited circumstances in which Title IX or this part permits
different treatment or separation on the basis of sex, a recipient must
not carry out such different treatment in a manner that discriminates
on the basis of sex by subjecting a person to more than de minimis harm,
unless otherwise permitted by Title IX or this part. Adopting a policy or
engaging in a practice that prevents a person from participating in an
education program or activity consistent with the person’s gender
identity subjects a person to more than de minimis harm on the basis of
sex.
87 Fed. Reg. 41571. The Department notes that its regulations have “recognized
limited contexts in which recipients are permitted … to separate student on the basis
of sex because the Department has determined that in those contexts such treatmentOpinion of the Attorney General 23-04
July 6, 2023
Page 12
12
does not generally impose harm on students. See e.g., 34 CFR 106.33 (toilet, locker
room, and shower facilities); id. at 105.34(a)(3).” 87 Fed. Reg., 41534. But the
Department cites to Grimm, Whitaker, and other restroom cases, and states that
“courts have recognized that a [school] subjects students to such harm when it bars
them from accessing otherwise permissible sex-separate facilities or activities
consistent with their gender identity.” Id. at 41535. Thus, the Department’s proposed
regulations reflect its view that facilities separated based on biological sex are
generally legal, but that students should be allowed to use the sex-separated facility
that aligns with the gender, when the student’s sex and gender identity do not align.
Again, it is important to note that these proposed regulations are not final and
are not currently binding on recipients of federal funding. Moreover, these proposed
regulations addressing gender identity are based on the Department’s expansive
interpretation of Bostock, which it disclosed in a published interpretation entitled,
“Enforcement of Title IX of the Education Amendments of 1972 with Respect to
Discrimination Based on Sexual Orientation and Gender in Light of Bostock v.
Clayton County.” Interpretation, 86 Fed. Reg. 32,637 (June 22, 2021). That flawed
published interpretation is the subject of a legal challenge currently on appeal before
the Sixth Circuit Court of Appeals. See Tenn., et. al. v. Dep. of Ed., et. al, No. 22-5807.
In sum, Title IX’s text and existing implementing regulations allow disparate
treatment based on biological sex in some contexts. Moreover, the United States
Supreme Court and Sixth Circuit Court of Appeals have warned that Title VII case
law concerning gender identity discrimination in the workplace do not apply to Title
IX. For these reasons, it is the Attorney General’s opinion that a school district’s
implementation of Senate Bill 150’s provision concerning restrooms, locker rooms,
and shower rooms would not violate Title IX.
D. A school district does not violate Title IX simply because it does not
have a required preferred pronoun usage policy.
KDE’s implication that a school district may violate Title IX by not having a
preferred pronoun policy wholly lacks merit.11 In fact, the recent Sixth Circuit Court
of Appeal’s holding in Meriwether v. Hartop suggests just the opposite. Meriwether,
992 F.3d at 511. In that case, a professor, Nicholas Meriwether, was disciplined by
his employer for failing to comply with the university’s policy mandating he refer to
the plaintiff by preferred pronouns during class. Meriwether sued stating that the
university violated his rights under the Free Speech and Free Exercise Clauses of the
First Amendment. The court held that the university’s policy forcing Meriwether
under the threat of discipline to use a student’s preferred pronouns stated a claim for
violation of Meriwether’s First Amendment rights. Id. at 511–12, 517. The court also
11 Dodds, the only Sixth Circuit case cited in KDE’s guidance, has nothing to do with preferred pronoun
polices.Opinion of the Attorney General 23-04
July 6, 2023
Page 13
13
rejected the university’s argument that Title IX compelled a different result. Id. at
511. The court noted that the failure of Meriwether to use preferred pronouns, absent
more, was not sufficient to support a Title IX hostile-environment claim because
Meriwether’s actions were not “serious enough to have the systematic effect of
denying the victim equal access to an educational program or activity.” Id. (quoting
Davis, 526 U.S. at 652).12
Senate Bill 150 simply prevents schools from implementing a policy concerning
preferred pronouns that teachers and students must follow under the threat of
discipline. Senate Bill 150 does not prevent teachers and students from voluntarily
referring to students by their preferred pronouns if they choose to do so. By giving
students and teachers the freedom to act in accordance with their beliefs, however,
Senate Bill 150 preserves the First Amendment rights of students and teachers
consistent with the Meriwether holding. And in doing so, it alleviates potential
liability for school districts for First Amendment claims. For these reasons, it is the
Office’s opinion that implementation of Senate Bill 150’s prohibition on preferred
pronoun usage polices does not violate Title IX.
Daniel Cameron
ATTORNEY GENERAL
Jeremy J. Sylvester
Assistant Attorney General
12 This is consistent with letter from Assistant Secretary Kenneth Marcus to Representative Mark
Green dated March 9, 2020, which is available at
https://www2.ed.gov/about/offices/list/ocr/correspondence/congress/2020…-
preferred-pronouns.pdf. That letter states, ‘By itself, refusing to use transgender students’ preferred
pronouns is not a violation of Title IX and would not trigger a loss of funding or other sanctions.”