Overview
On August 28, 2025, the U.S. Department of Education's Office for Civil Rights ("OCR") announced that it found Denver Public Schools in violation of Title IX for converting a sex-separated multi-stall girls' restroom in a school building to an "all gender" facility in December 2024, and for maintaining a "policy" which "allow[ed] students to use intimate facilities corresponding to their 'gender identity' rather than biological sex."
What You Need to Know:
- OCR concluded that there being a sex-separated boys' restroom on the second floor, but not a sex-separated girls' restroom, constituted discrimination on the basis of sex, even though a sex-separated girls' restroom was available elsewhere in the building.
- OCR rejected an attempted "fix" which would have seen all restrooms on the floor be "all gender," concluding that even with ostensibly equal facilities, the "policy" permitting "males…to invade sensitive female-only facilities" nonetheless constituted a Title IX violation.
- This OCR action deepens the ongoing conflict between agency interpretations of the law; applicable state and local law; and prevailing federal case law.
Background on the Denver Investigation
OCR initiated its investigation of Denver Public Schools on January 28, 2025, as "the first Title IX directed investigation undertaken by the Trump Administration…." A directed investigation is "an OCR-initiated process that allows OCR to address possible discrimination that is not currently being addressed through OCR's complaint, compliance review or technical assistance activities."
As noted, in December 2024, the school district had converted a sex-separated multi-stall girls' restroom to an "all gender" facility, leaving the second floor of the building without a sex-separated girls' restroom. OCR determined that because "male students had access to a restroom designated exclusively for males on the floor," with no equivalent for girls, the school district violated Title IX "by placing the burden only on females to seek an exclusive restroom elsewhere, thereby denying their right to equal educational facilities and opportunities." OCR determined that converting the sex-separated multi-stall boys' restroom on the second floor into an "all gender" restroom as well would not bring the school district into compliance, because regardless, the "policy" which "allow[ed] students to use intimate facilities corresponding to their 'gender identity' rather than biological sex" was non-compliant.[1]
OCR issued a proposed Resolution Agreement and gave the school district "an opportunity to voluntarily agree within 10 days or risk imminent enforcement action." The proposed Resolution Agreement would require the school district to "[c]onvert and redesignate all multi-stall restrooms for use by both sexes…back to sex-designated multi-stall restrooms"; "[r]escind any policies or guidance which allow students to access intimate facilities based on 'gender identity,' not biological sex"; and "[a]dopt biology-based definitions for the words 'male' and 'female' in all policies and practices related to Title IX."
Contextualizing the Denver Investigation
One of the first actions President Trump undertook at the start of his second term was to sign Executive Order 14168, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." EO 14168 declares it "is the policy of the United States to recognize two sexes" which "are not changeable," and orders federal agencies to "take all necessary steps" to "end the Federal funding of gender ideology," defined as "the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true." While EO 14168 does not specify what it means to use federal funds to "promote" gender ideology, colleges and universities have been asked to certify, as a condition of receiving federal grants and contracts, that they are compliant with Title IX, "including the requirements set forth in [EO 14168]." Such certifications have specifically noted that "a knowing false statement" relating to a certification of compliance may subject the institution to criminal liability and/or civil liability under the False Claims Act, 31 U.S.C. § 3729.
EO 14168 is just one of a number of actions undertaken by the administration which attempt to limit facilities access of transgender individuals. For example, Executive Order 14201 ("Keeping Men Out of Women's Sports") orders federal agencies to "take all appropriate action to affirmatively protect…all-female locker rooms and thereby provide the equal opportunity guaranteed by [Title IX]." On April 4, 2025, OCR announced: "To all the entities that continue to allow men to…use women's intimate facilities: there's a new sheriff in town." On January 28, 2025, the EEOC announced that it would prioritize matters enforcing cisgender women's rights to single-sex spaces at work. And, in a July 29, 2025 "Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination," Attorney General Pam Bondi wrote:
Federally funded institutions that allow males, including those self-identifying as "women," to access single-sex spaces designed for females…undermine the privacy, safety, and equal opportunity of women and girls[;] risk creating a hostile environment under Title VII, particularly where they compromise women's privacy, safety, or professional standing[;] and can violate Title IX by denying women access to the full scope of sex-based protections in education.
AG Bondi noted that while "[a]ll workplace programs, activities, and resources should be open to all qualified individuals, regardless of [sex],…[s]ome sex separation is necessary where biological differences implicate privacy, safety, or athletic opportunity."
Conflict With State and Local Law, and Applicable Case Law
Following OCR's interpretation of the law – that Title IX prohibits institutions from permitting restroom access based on gender identity and requires that access be limited based on sex assigned at birth – could force schools into non-compliance with state and local law, which, in many states, has been interpreted to require access in accordance with gender identity. In Colorado, for example, state-level non-discrimination law has prohibited discrimination based on sexual orientation and gender identity for almost 20 years, with protections only growing more robust over time, including a requirement that certain public buildings, including some K-12 schools and state institutions of higher education, provide "non-gendered restroom facilit[ies]" and "[a]llow for the use of multi-stall restrooms by any gender."
Following OCR's interpretation of the law could also leave schools vulnerable to suit under federal law. In Bostock v. Clayton County, 590 U.S. 644 (2020), the United States Supreme Court intentionally side-stepped the issue of whether its ruling, interpreting Title VII's prohibition on sex discrimination to include discrimination based on sexual orientation and gender identity, was appliable to Title IX. At present, there is no federal law, regulation, or binding case law which suggests that a cisgender woman's right to an environment which is limited to cisgender women trumps a transgender woman's right to use facilities which are consistent with her gender identity. Turning back to Colorado, the Tenth Circuit is currently, in Bridge, et al v. Oklahoma State Department of Education, et al, considering the validity of an Oklahoma law which requires all public and public charter schools in the state to designate multi-stall restrooms for the exclusive use of either males or females as designated on the individual's original birth certificate. The decision will likely have implications far beyond K-12 schools in Oklahoma.
Where Do We Go From Here?
Given these conflicting directives, institutions must take a close look at the laws and regulations applicable to them, as well as their own policies and commitments, and determine an approach that is appropriate for their community.
A recent case out of the Sixth Circuit, John & Jane Doe No. 1 v. Bethel Local School District Board of Education, in which the Court ruled on an Ohio school district's policy permitting transgender students to use the multi-stall restroom of the gender with which they identify, is instructive. While the case was pending, Ohio enacted a law requiring schools to restrict restroom access based on biological sex, rendering several claims moot. The Court considered only whether plaintiffs were entitled to damages under 42 U.S.C. § 1983 for the time the policy was in place and concluded that they were not.
In response to the claim that the school district policy caused religious students to "avoid using the communal restrooms and undermined religious parents' commitment to keeping their kids from sharing intimate spaces with the opposite sex," the Court concluded that the policy satisfied rational basis review, and was not subject to heightened scrutiny as was the use of LGBTQ+-inclusive books without parental notice or opt-outs at issue in the recent case of Mahmoud v. Taylor, 145 S. Ct. 2332 (2025), because "the policy did not require students to use the communal restrooms" and as such was not "compulsory." The Court relied on the same reasoning, that students "had the option to use the single-occupancy restrooms if they found sharing communal restrooms with a transgender student incompatible with their religious upbringing," in concluding that the policy did not infringe on parents' rights.
Of note, in a public statement about OCR's finding, Denver Public Schools mirrored the Sixth Circuit's line of reasoning, referring to OCR's interpretation of the law as "inscrutable" and asserting: "Title IX permits schools to provide sex-separate restrooms. It does not require that to be the only option" (emphasis in original). In this rapidly changing landscape, the maximization of choice – acknowledging the limitations of physical plant and labyrinthine plumbers' codes – may be the best path for institutions to maintain an environment which strikes an acceptable balance.
The Higher Education Group at Saul Ewing will keep a close eye on this issue, to support colleges and universities as they work to implement legally compliant strategies to provide all student and employees a welcoming and non-discriminatory environment. Please do not hesitate to contact the authors of this alert, or your regular Saul Ewing point(s) of contact, with any questions about the substance of this alert.
[1] The school district denied that it had such a policy, but OCR pointed to a "Denver Public Schools LGBTQ+ Toolkit," available online, which stated that "transgender, non-binary, and gender non-conforming students have the right to use facilities...that match their gender as consistently expressed at school."
