OCR Announces “Directed Investigation” into All-Gender Bathrooms
Alerts
January 30, 2025
On January 28, 2025, the United States Department of Education’s Office for Civil Rights (OCR) notified Denver Public Schools that it was opening a “directed investigation” regarding the district’s all-gender bathrooms. This investigation is one of the first publicly announced actions that OCR has taken in the wake of the January 20 executive order regarding gender, so the announcement provides valuable insight into how OCR intends on interpreting and implementing this executive order.
What Is a Directed Investigation?
Even if you have experience working with OCR, you may be unfamiliar with a directed investigation. Typically, an OCR investigation begins when a person files a complaint. Directed investigations, on the other hand, are initiated by OCR, without an external complaint. More information is available in Section 402 of OCR’s Case Processing Manual.
Factual Background
Earlier this month, Denver’s East High School converted a girls’ bathroom on the school building’s second floor into a multi-stall, all-gender bathroom. Because of this renovation, the second floor now lacks a dedicated girls’ bathroom. The letter also notes that the district installed multi-stall, all-gender bathrooms in two other schools.
Governing Regulation
Under 13 C.F.R. § 106.33, a recipient of federal financial assistance “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
Legal Issue
OCR will investigate “whether the District discriminates against students on the basis of sex by installing multi-stall, all gender restrooms in District school facilities, in violation of Title IX and its implementing regulations.” As Acting Assistant Secretary for Civil Rights Craig Trainor stated in a press release, OCR’s position is that the district may have violated Title IX when they “denied female students a restroom comparable with their male counterparts.”
Conclusion
The relevant executive order provides that each federal agency “shall enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.” This investigation provides an early look into how OCR may interpret Title IX in order to comply with this order. We will continue to track developments in this area, but as the compliance landscape evolves, we encourage you to contact any member of Shipman’s School Law Practice Group if you have any questions.