Defending Ed files civil rights complaint against Contoocook Valley High School District for Title IX and Equal Protection violations

Defending Education (DE) brings this complaint against Contoocook Valley School District (ConVal) for discrimination on the basis of sex in programs or activities that receive federal financial assistance in violation of Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et. seq. and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

DE brings this complaint as an interested third-party organization with members who are parents and students throughout the country, and on behalf of a parent of a ConVal Regional High School student. DE and its members oppose, among other things, discrimination on the basis of sex in America’s K-12 schools and institutions of higher education. Title IX prohibits discrimination based on sex in any education program or activity receiving federal financial assistance. At the same time, Title IX also protects single-sex spaces: for example, female students are entitled to sex-segregated intimate spaces, single-sex membership in sororities, single-sex athletic teams, and single-sex admissions where an institution has held itself out to be single-sex and provides substantially equivalent educational opportunities.

The ConVal District is located in Southwestern New Hampshire and incorporates 11 schools. Though subject to the provisions of Title IX as a recipient of federal funding, the Superintendent of ConVal School District has indicated to at least one ConVal parent (as evidenced in the attached exhibits) that the district will not be following federal law and will instead abide by New Hampshire’s and ConVal’s antidiscrimination provisions, which permit transgender-identified males to use restrooms and locker rooms that correspond to their gender identity rather than their biological sex.

In fact, ConVal school district leadership has specifically stated that it will apply New Hampshire state law and ConVal district policy to allow biological males in girl-only spaces like locker rooms and bathrooms regardless of any objections from the biological females who use those spaces. Instead, if a girl is “uncomfortable utilizing the [girls’] locker room because” a biological boy is in there with her, the school will ask the girl—not the boy—to “change elsewhere.” (See Exhibits, p.9 et. seq, below.)

Specifically, and by way of example, ConVal Regional High School’s student handbook contains the following prohibition on discrimination:

Non-Discrimination

It is the policy of ConVal High School to maintain a learning environment that is free from discrimination based on race, religion, disability, gender identity, or relationship preference (Policies AC, ACAC, ADD, JICK). ConVal High School prohibits any form of race, gender identity, relationship orientation, disability, religion, national origin/ethnic harassment and violence.

The policy is notably devoid of prohibitions on discrimination based on “sex.”

Quizzically the ConVal School District policy handbook also includes what appears to be an indication of recission of its policy enforcing and applying Title IX’s sex discrimination prohibitions a few pages later (see exhibits, p. 7, below with a watermarked indication: “rescinded”).

All this is despite the fact that ConVal’s own website acknowledges the District is subject to Title IX and links to the U.S. Department of Justice’s current guidance on the law.

Federal case law, Title IX’s plain text and implementing regulations, and this Department’s guidance indicate that schools receiving federal funding must prohibit discrimination based on sex in the administration of their facilities, programs, and opportunities. Importantly, though, discrimination based on gender identity is not the same as discrimination based on sex under Title IX, as this Department well knows, and the Supreme Court has never held it is.

Thus, to the extent ConVal’s accommodations for so-called gender identity encroach upon sex-specific programs and spaces within its 11 schools, it is in violation of Title IX. ConVal’s policy also violates various Presidential Executive Orders on policies related to sex discrimination in federally funded programs and this Department’s stakeholder guidance on Title IX and the prevention of sex discrimination in federally funded program.

In United States v. Virginia, the Supreme Court explained that sex discrimination—which includes policies, like ConVal’s, that fail to respect sex-specific programs and spaces—is presumptively unlawful absent “exceedingly persuasive justification.” ConVal’s gender identity policies cannot possibly satisfy that standard because the entire purpose of Title IX is to “protec[t] biological women in education.”That purpose is directly undermined by policies that “subordinate the fears, concerns, and privacy interests of biological women to the desires of transgender biological men” who want to intrude upon spaces normally reserved for “their female peers.”

ConVal’s obvious and odious preference to protect gender identity over biological sex, in other words, “subvert[s] the original purpose of Title IX.”

The Department’s own guidance on Title IX clarifies that covered educational programs and activities include: “[A]ll the operations of a school that receives financial assistance including academics, extracurricular activities, athletics, and other programs. Title IX applies to all operations of a school, including those that take place in the facilities of the school, on a school bus, or in a class or training program sponsored by the school at another location.”

By holding fast to state and local laws, while giving mere lip service to its adherence to federal law, the ConVal School District is attempting to have its cake and eat it, too. But as this Department is aware, the Constitution’s Supremacy Clause identifies a victor between state and federal law when the two are in opposition. It reads: the “Constitution and the laws of the United States … shall be the supreme law of the land … anything in the constitutions or laws of any State to the contrary notwithstanding.”And “[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.”

Title IX was enacted to cement for women the guarantee of Equal Protection found in the Constitution’s 14th Amendment. It was precisely the type of “so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” But the ConVal School District appears to have forgotten that.

Accordingly, we ask that the Department promptly investigate all the allegations in this complaint, act swiftly to remedy unlawful policies and practices, and order appropriate relief.

---