The U.S. Department of Education found on Thursday that Denver Public Schools had violated Title IX, the federal law that bans sex-based discrimination in schools, for its policy of creating all-gender bathrooms in its schools.

A Department of Education investigation found the policy, which allows students to use bathrooms that align with their gender identity instead of their biological sex, breached federal standards and “violates Title IX and its implementing regulations.”

The Resolution

In a proposed resolution letter sent to DPS, Acting Assistant Secretary for Civil Rights Craig Trainor said students now have “unequal access” to bathroom facilities in East High School and other schools in Denver because of the all-gender bathroom policy.

Trainor said the department found the move “created a hostile environment in violation of Title IX.” He later added, “In a school setting, DHS should protect the privacy, safety, and dignity of students, not sully their educational environment with sex discrimination.”

The resolution plan, if not rejected or modified, must be accepted by DPS within 10 days and will require the district to change its bathroom policy. Otherwise, the Education Department could take enforcement measures against the school district, such as imposing financial penalties.

The department’s proposed resolution requires DPS to:

• Rescind the designation of all existing all-gender, multi-stall restrooms as all-gender.
• Change school policy to disallow students from using the intimate facilities that do not correspond with their biological sex.
• Amend Title IX policies and practices with “biology-based definitions” for “male” and “female.”

Issue a new memo to schools making clear they are required to “designate their intimate facilities for the exclusive use of one sex” while also “respecting the privacy, safety, and dignity of all students and maintaining equitable access for both male and female students.”

The Department of Education’s letter said the school district has until Jan. 31 to formally accept the proposed resolution plan and return it to the department’s Office for Civil Rights.

School officials in Denver have pushed back against the resolution, saying it “glosses over key facts” that helped to shape the all-gender bathroom decision.

District officials did not immediately respond to a request for comment on the letter.

How This Started

In January, the Education Department’s Office for Civil Rights launched an investigation into the school district over an all-gender restroom at East High School. The department said its decision to investigate followed the district’s move to redesignate a female restroom into a gender-neutral facility.

DPS leaders said the restroom change occurred after a student-led process and that all-gender restrooms were configured with 12-foot partitions around toilets to ensure safety and privacy for all students.

In 2017, the district installed its first all-gender restroom at East High School after what officials said was a collaborative, student-driven decision. Officials added that the district had also created a second all-gender bathroom to address fairness concerns.

The all-gender restroom controversy at East High School also sparked confusion because, at the time, there remained an open restroom for boys on the same floor where the all-gender bathrooms were located. In addition to all-gender and male restrooms, East High students also had access to traditional girls’ restrooms and single-stall, all-gender facilities in other parts of the school.

The Department of Education has been highly critical of Denver’s approach, noting in its letter that the new bathroom policy created an atmosphere that is not equal for both sexes. Title IX requires schools to offer “comparable” bathrooms for boys and girls, according to the U.S. Department of Education.

Federal Officials Weigh In

U.S. Secretary of Education Betsy DeVos spoke about the case earlier in the week, warning school districts that the department would hold them accountable if their policies did not align with federal law.

“We will not stand idly by as the Trump Administration weaponizes taxpayer dollars to force schools to discriminate against students on the basis of their sex and sexual orientation,” DeVos said.

The National Association for School Psychologists and the National PTA have also criticized the Education Department’s decision and resolution plan.

Acting Assistant Secretary for Civil Rights Craig Trainor criticized the district’s decision to convert the girls’ restroom to an all-gender facility, saying that the change “endanger student safety, privacy, and dignity.” He said, “Denver Public Schools violated Title IX and its implementing regulations by converting a sex-segregated restroom designated for girls in East High School to an ‘all-gender’ facility and by allowing students to use the high school’s intimate facilities on the basis of their gender identity rather than their biological sex.”

Trainor also said the Trump Administration would be relentless in its efforts to hold accountable any school district that harbored what he called “ideological fanatics” and policies that bring sex discrimination into the educational system.

The Decision

A spokesperson for Denver Public Schools told The Denver Post the district stands by its decision and students are still provided a range of bathroom options in its schools.

“School leaders and students at East High collaborated and followed DPS procedure to update the school’s restrooms to meet the needs of our students and to ensure student privacy and safety,” the spokesperson said.

The district also created single-stall, all-gender restrooms to address privacy and safety concerns, the spokesperson noted.

Denver is among several school districts that have changed bathroom policies in recent years to recognize the growing number of students who do not identify as either male or female. Experts say non-binary students often face discrimination in public school bathrooms.

The Denver Public Schools controversy comes as a number of states and the federal government are weighing how gender identity issues should be handled in public schools.

In April, President Trump signed an executive order blocking transgender girls from participating on sports teams that do not match their biological sex. Trump also said he will use federal funds as leverage to prevent schools from allowing transgender students to use the bathrooms or play on sports teams that match their gender identity.

The Republican-led Congress has introduced several pieces of legislation in recent months that would block transgender students from using bathrooms or joining sports teams that reflect their gender identity.

The Education Department has handled a number of cases involving public schools and gender issues. In one recent case, the department’s Office for Civil Rights said George Mason University violated federal law with its diversity, equity, and inclusion (DEI) programs and activities under Title VI.