Australian Court Upholds Gender Identity Discrimination Ban

 In Tickle v Giggle for Girls Pty. Ltd., (Australia Fed. Ct., Aug. 23, 2024), an Australian Federal Court judge upheld the constitutionality of the ban on discrimination on the basis of gender identity in Australia's Sex Discrimination Act. The suit was brought by Roxanne Tickle, a transgender woman, who was denied access to a women's-only online app. The court explained:

The respondents do not accept that a person’s sex can be a matter for self-identification. Correspondingly, they do not accept either the validity or legitimacy of the gender identity discrimination provisions of the SDA....

In about February 2021, Ms Tickle downloaded the Giggle App. The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space. Ms Tickle undertook a registration process to gain access to the Giggle App, which including providing information and uploading a self-taken photograph of her face, commonly known as a selfie.

The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women.... Ms Tickle gained access to the Giggle App.

In the period between February and sometime in September 2021, Ms Tickle had access to the Giggle App’s features and used it to read content posted by other users. In September or early October 2021, Ms Tickle logged on to the Giggle App, but found that she could no longer post content or comment on other users’ posts, or read comments on posts made by other users.... When she attempted to purchase premium features on the Giggle App, she received a “User Blocked” message. Her attempts to contact Giggle via the in-App contact form received no response....

It is most likely that Ms Tickle was denied user access to the Giggle App as a result of a general review process by a natural person of the AI acceptances of registration, rather than by reason of her being singled out....

Law & Religion Australia has an extensive discussion of the decision.

Trans Woman Fired by Liberty University Sues

Suit was filed this week in a Virginia federal district court against Liberty University by a transgender woman who was fired from her position as an Apprentice at the IT Help Desk because she was undergoing gender transition treatment. The complaint (full text) in Zinski v. Liberty University, Inc., (WD VA, filed 7/29/2024), alleges that terminating plaintiff's employment violated Title VII's ban on sex discrimination. A press release from ACLU of Virginia elaborates on plaintiff's dismissal, saying in part:

Liberty University officials read a termination notice aloud to Ellenor citing “denying biological and chromosomal sex assigned at birth” as the basis for her termination, stating a conflict with Liberty’s Doctrinal Statement that names “denial of birth sex by self-identification with a different gender” as a “sinful act prohibited by God.” 

Suit Challenges HHS Rules Barring Gender Identity Discrimination in Federally Funded Health Care Programs

Suit was filed yesterday in a Missouri federal district court by six states and a national organization of pediatricians challenging new rules adopted in May by the Department of Health and Human Services barring discrimination on the basis of gender identity in federally funded health care programs. The complaint (full text) in State of Missouri v. Becerra, (ED MO, filed 7/10/2024), alleges in part:

1. ... [The] new final rule ... forces doctors to perform, refer for, or affirm harmful gender-transition procedures and forces States to pay for these dangerous procedures in state health plans....

2. HHS threatens to punish doctors and States who do not comply with the mandate by imposing huge financial penalties and excluding them from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). This punishment would effectively preclude doctors and States from providing healthcare for the most vulnerable children in low-income communities. 

3. This harmful rule violates the Affordable Care Act (ACA), the Administrative Procedure Act (APA), the structural principles of federalism, and the freedom of speech. 

4. Congress did not authorize any of this. The rule purports to implement the sex-discrimination prohibition in Section 1557 of the ACA, but there is no gender-transition mandate in that statute, nor in Title IX of the Education Amendments of 1972 from which it is derived. Nor did the rule (or the ACA) satisfy the constitutional requirements of clear notice for such a mandate: the States and healthcare providers did not agree to provide, pay for, or affirm gender-transition procedures when they began Medicaid, Medicare, and CHIP. 

States bringing the lawsuit are Missouri, Utah, Arkansas, Iowa, North Dakota, South Dakota and Idaho. ADF issued a press release announcing the filing of the lawsuit.

Belgian Court Fines Catholic Archbishop and Cardinal for Denying Woman Clergy Training

The Pillar and Catholic News Agency report that a Belgian civil court has fined a Cardinal and an Archbishop each 1500 Euros for refusing to allow a woman to register for training as a deacon in the Catholic Church. Article 10 of Belgium's Constitution provides that "Equality between women and men is guaranteed." In Belgium, the state pays the salaries of clergy, but the Catholic Church reserves holy orders to baptized men. While the court held that the Church should have admitted Veer Dusauchoit for training, it did not address whether the Church would later be required to ordain her.

Texas School Sues Over New Title IX Rules on Sex Discrimination

Suit was filed this week in a Texas federal district court challenging the Biden administration's new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity.  The complaint (full text) in Carroll Independent School District v. U.S. Department of Education, (ND TX, filed 5/21/2024), alleges in part:

7.... This bureaucratic fiat prevents Carroll ISD from protecting private spaces like bathrooms, locker rooms, and showers for both girls and boys, opens girls’ sports to males, and infringes on the constitutional rights of students and staff.  

8. The administrative rewrite achieves the exact opposite of Title IX’s goal to promote equal opportunity for women. For fifty years, “sex” has meant the biological binary—differences between male and female. Respecting these biological differences is essential to achieving that goal—and Title IX recognizes as much. But now the Biden administration’s regulations will require schools to ignore sex to promote a person’s subjective “sense” of their gender.  

9. Schools must do so even though it deprives their female students of the equal opportunities in education that Title IX promised.

ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Clarifies Harm Requirement in Title VII Job Transfer Claims

 In Muldrow v. City of St. Louis, (Sup. Ct., April 17, 2024), the U.S. Supreme Court, in an opinion by Justice Kagan, clarified the extent to which harm must be shown in a Title VII employment discrimination case in which plaintiff alleges a discriminatory job transfer. The court said in part:

The courts below rejected the claim on the ground that the transfer did not cause Muldrow a “significant” employment disadvantage.  Other courts have used similar standards in addressing Title VII suits arising from job transfers. 

Today, we disapprove that approach. Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.  Title VII’s text nowhere establishes that high bar....

To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.

What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.” ... Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.

Justices Thomas, Alito and Kavanaugh each filed a separate opinion concurring in the judgment, but differing to some extent with the majority's reasoning. 

Although this case involved sex discrimination, the test would apply equally to religiously discriminatory job transfers. Wisconsin Public Radio reports on the decision.

7th Circuit: Refusal to Dismiss Under Church Autonomy Doctrine Is Not Appealable Interlocutory Order

 In Garrick v. Moody Bible Institute, (7th Cir., March 18, 2024), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that that an order refusing to dismiss a Title VII employment discrimination case under the church autonomy doctrine is not an appealable interlocutory order. The suit was brought by a former communications instructor who claimed sex discrimination.  According to the Bible Institute, the instructor's firing resulted from her disagreement with the Institute's doctrine that only men should serve as clergy. Plaintiff contended that this was merely a pretext for sex discrimination. In denying appealability, the court said in part:

... Moody’s argument that it will experience irreparable harm without immediate review and reversal of the district court’s order is unavailing. Religious autonomy to shape and control doctrine will not be threatened. Within its discretion to manage discovery, the district court should limit discovery to instances of discriminatory treatment in situations not implicated by Moody’s complementarian beliefs.

Judge Brennan dissented, arguing that the interlocutory dismissal order should be appealable. Americans United issued a press release announcing the decision.

Pharmacist Violated Sex Discrimination Ban in Refusing to Fill Prescription for Emergency Contraceptive

 In Anderson v. Aitkin Pharmacy Services, LLC, (MN App., March 18, 2024), a Minnesota state appellate court held that a pharmacist violated the Minnesota Human Rights Act that prohibits intentionally refusing to do business with a person because of the person's sex. The pharmacist refused to dispense plaintiff's prescription for the emergency contraceptive ella because of his conscientious objection to dispensing any medication that prevents the implantation of a fertilized egg. The statute defines sex discrimination as including discrimination because of pregnancy. The court said in part:

Badeaux refused to dispense Anderson’s valid prescription because Badeaux believed she may have been pregnant.  Thus, pregnancy was a substantial causative factor in Badeaux’s refusal to dispense ella....

Badeaux did not assert a constitutional defense in district court and does not argue that the MHRA actually violates his constitutional rights.  Instead, he argues on appeal that the sex-discrimination language in the MHRA should be interpreted to avoid a constitutional conflict.... But we do not apply the constitutional-avoidance canon to a party’s proposed interpretation of a statute if the interpretation is contrary to the plain language of the statute.

The court however refused to reverse the jury's finding that the Pharmacy, as opposed to the individual pharmacist, did not violate the sex discrimination ban. The court said in part:

The evidence shows that Aitkin Pharmacy wanted to fill all valid prescriptions and had a pharmacist on staff who was willing to dispense emergency contraception.  The evidence also shows that, when Badeaux called Anderson on January 21, he communicated both that he was unwilling to dispense ella and that there was another pharmacist scheduled to work who was willing to dispense her prescription.... [T]here is a reasonable theory of the evidence to support the verdict that Aitkin Pharmacy did not intentionally refuse to do business with Anderson...

The court also concluded that, because of erroneous jury instructions, plaintiff should have been granted a new trial on her claim that the pharmacy violated the state's public accommodation law that bans denial of the full and equal enjoyment of goods and services in places of public accommodation because of sex. Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Pennsylvania Supreme Court Casts Doubt on Abortion Exclusion From State Medicaid Coverage

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Sup. Ct., Jan. 29, 2024) [Majority Opinion], the Pennsylvania Supreme Court remanded to the trial court for strict scrutiny review a challenge to the constitutionality of Pennsylvania's ban on the use of state Medicaid funds for abortion services (except in the case of rape, incest or threat to the life of the mother). Six of the Court's 7 Justices participated in the case.  Justice Donohue's opinion (joined by Justice Wecht) sets out the conclusions of a majority of the Justices in a 219-page opinion. The majority overruled its 1985 decision in Fischer v. Department of Public Welfare that had upheld the ban.  The majority concluded that that pregnancy-related distinctions may violate the state Constitution's Equal Rights Amendment (Art. I, Sec. 28), saying in part:

... [T]he Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex....

 ... [W]e overrule Fischer’s interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

The majority also overruled Fischer's holding that the state Constitution's equal protection provision (Art. I, Sec. 26) does not prevent the state from conferring a benefit unequally.  The majority said in part:

... [A] court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

Writing only for himself and Justice Wecht, Justice Donohue also contended that that the state Constitution substantively protects a woman's right to make reproductive decisions, including abortion.

Justice Wecht also filed a 71-page concurring opinion discussing additional issues. Chief Justice Todd filed a 17-page opinion dissenting in part, concluding that the Fischer decision is binding precedent. Justice Dougherty filed a brief opinion concurring in part, agreeing with the majority's overruling of Fischer. Justice Mundy filed a 24-page opinion dissenting in part, concluding that the funding ban should be upheld on the basis of the Fischer case and strongly criticizing the majority's holding that Art. I, Section 26 requires funding neutrality.

Philadelphia Inquirer reports on the decision.

Suit Challenges Georgia Ban on Treatment of Minors for Gender Dysphoria

Suit was filed last week in a Georgia federal district court challenging the constitutionality of Georgia Senate Bill 140 which prohibits irreversible sex reassignment surgery and hormone replacement treatment of minors for gender dysphoria. The complaint (full text) in Koe v. Noggle, (ND GA, filed 6/29/2023), alleges in part:

The Health Care Ban violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children. By prohibiting medical providers from treating minors with gender dysphoria—a rare condition often requiring medical and therapeutic treatment and care—in accordance with the standards of care and clinical practice guidelines, the Ban prohibits Georgia parents from seeking and obtaining appropriate medical treatment for their children.

... [It] also violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment based on their sex and on their transgender status.

ACLU issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review in Christian College's Challenge to Fair Housing Act Enforcement

The U.S. Supreme Court yesterday denied review in The School of the Ozarks v. Biden, (Docket No. 22-816, certiorari denied, 6/20/2023). (Order List). In the case, the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.)

Catholic Hospital's Denial of Gender Dysphoria Procedure Is Illegal Sex Discrimination

In Hammons v. University of Maryland Medical System Corp., (D MD, Jan. 6, 2023), a Maryland federal district court held that a hospital's refusal to allow plaintiff to have a hysterectomy performed at the hospital to treat gender dysphoria was sex discrimination in violation of the Affordable Care Act's discrimination ban. The hospital was originally a Catholic hospital, and when the University of Maryland System acquired it, the purchase agreement required it to continue to abide by the Ethical and Religious Directives for Catholic Health Services promulgated by the United States Conference of Catholic Bishops. In finding discrimination, the court said in part:

It may be true that St. Joseph prohibits medical personnel from performing hysterectomies on all individuals, regardless of sex, who do not have a medical need for that surgery—i.e., individuals who seek a hysterectomy solely for the purpose of elective sterilization. However, Mr. Hammons did have a medical need for his requested hysterectomy; he was not seeking a hysterectomy for the purpose of elective sterilization.

The court also concluded that since defendant is a wholly owned subsidiary of a state actor, a RFRA defense is not available to it. It added that even if defendant is considered a private actor, a RFRA defense is not available because RFRA only applies to burdens on free exercise imposed by the government. Daily Citizen reports on the decision.

Another Catholic Parish Sues Michigan Over Expanded Interpretation of State's Anti-Discrimination Laws

 As previously reported, in August the Michigan Supreme Court interpreted the state's civil rights law which bans sex discrimination to cover discrimination on the basis of sexual orientation or gender identity. Yesterday, a Catholic parish, including its school, as well as several parents of students in the school filed suit in a Michigan federal district court alleging that, interpreted in this manner, the employment, education and public accommodation provisions of the Elliott-Larsen Civil Rights Act violate plaintiffs' First and 14th Amendment rights.  The complaint (full text) in Sacred Heart of Jesus Parish v. Nessel, (WD MI, filed 12/22/22), alleges in part:

To comply with Michigan’s re-understood laws, Sacred Heart Parish and its school, Sacred Heart Academy, would be forced to hire faculty and staff who lead lives in direct opposition to the Catholic faith, speak messages that violate Church doctrine, and refrain from articulating Catholic beliefs in teaching its students and when advertising the school to prospective students or job applicants. All of this violates Sacred Heart’s free speech and free exercise rights. Rather than defy Catholic doctrine in these ways, Sacred Heart would shut down. 

But if Sacred Heart cannot operate consistent with its Catholic faith, the parental and free exercise rights of its families are also implicated. Parents have explicitly opted out of public schools in favor of sending their children to Sacred Heart for an authentic Catholic education where their children would never be exposed to harmful ideas and ideologies that contradict the Catholic faith. When Michigan prevents Sacred Heart from operating its school consistent with its Catholic beliefs, it also necessarily violates the fundamental parental and free exercise rights of Sacred Heart families.

ADF issued a press release announcing the filing of the lawsuit.  Earlier this month, a different Catholic parish filed a similar lawsuit.

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

Utah Court Strikes Down Ban On Transgender Girls On School Sports Teams

 In Roe v. Utah High School Activities Association, (UT Dist. Ct., Aug. 19, 2022), a Utah state trial court issued a preliminary injunction barring enforcement of a provision in Utah law that bans transgender girls from competing on pre-college girls sports teams. Under Utah law, if the ban is enjoined a School Activity Eligibility Commission is to be created that will consider confidentially on a case-by-case basis whether it would be fair for a particular transgender student to compete on girls' teams. The court said in part:

The Court finds that Plaintiffs have shown a substantial likelihood that the Ban violates the uniform operation of laws (“UOL”) clause of the Utah Constitution....

Both a plain reading of the Ban and relevant case law demonstrate that the legislation classifies individuals based on transgender status and, therefore, on sex....

During the 2021-22 school year, only four of the 75,000 students that played high school sports in Utah were transgender. Of those four, only one student played on a girls’ team.... There is no support for a claim “that allowing transgender women to compete on women’s teams would substantially displace female athletes.”....  

Similarly, Plaintiffs’ evidence suggests that there is no basis to assume that transgender girls have an automatic physiological advantage over other girls. Before puberty, boys have no significant athletic advantage over girls.... Many transgender girls – including two of the plaintiffs in this case – medically transition at the onset of puberty, thereby never gaining any potential advantages that the increased production of testosterone during male puberty may create.... Other transgender girls may mitigate any potential advantages by receiving hormone therapy.... And still others may simply have no discernable advantage in any case, depending on the student’s age, level of ability, and the sport in which they wish to participate. The evidence suggests that being transgender is not “a legitimate accurate proxy” for athletic performance.

AP reports on the decision.

USDA Clarifies Title IX Religious Institution Exemption

On Aug. 12, the Department of Agriculture issued a Guidance (full text) clarifying that a Title IX exemption is available for religious educational institutions if there is a conflict between Title IX and a school’s governing religious tenets. The Guidance provides in part:

USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.

If, however, a religious educational institution wishes to seek USDA recognition of their religious exemption, it may do so through a written request under USDA regulations....

The Guidance comes after litigation by a Christian school in Florida that objected to submitting an exemption request in order to participate in the USDA's school lunch program and maintain its policies on gender identity. (See prior posting.)  ADF issued a press release on the USDA's action.

Christian School Challenges USDA's Interpretation Of Sex Discrimination Under Title IX

A Christian school which enrolls 56 students in grades Pre-K to 8 filed suit this week in a Florida federal district court challenging a U.S. Department of Agriculture Departmental Regulation defining sex discrimination as including discrimination on the basis of sexual orientation or gender identity.  The school is covered by the regulation because it participates in Title IX federal meal programs for its low-income students. The complaint (full text) in Faith Action Ministry Alliance, Inc. v. Fried, (MD FL, filed 7/27/2022) alleges in part:

9. If Grant Park Christian Academy does not comply with the new school lunch mandate, it will lose lunch funding for its children.

10. But if Grant Park Christian Academy complies with the new school lunch mandate, it will suffer harms to its educational mission, free speech, and religious exercise. It will no longer be able to maintain sex-separated restrooms for boys and girls based on their biological differences. It will no longer be able to maintain sex-specific dress code and uniform policies, in which, for example, only female students are permitted to wear skorts. It will no longer be able to draw its workforce from among those who share and live out its religious convictions. It will no longer be able to refrain from using pronouns that do not correspond to biological sex.

The complaint concedes that there is an exemption in Title IX for religious organizations where compliance would be inconsistent with their religious tenets. However, plaintiff objects to the requirement that it submit an exemption request for USDA approval, saying in part:

This exemption should apply by operation of statute, but USDA interprets Title IX to require religious schools to submit exemption requests.... These requests do not guarantee that schools have been, or even will be, exempt—but submitting requests do subject schools to a name-and-shame harassment campaign from activists.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: In an August 5 court filing, the parties informed the court:

Today ... state officials informed Grant Park Christian Academy that the school would be allowed to continue participating in the National School Lunch Program.... In addition, attorneys for the United States Department of Justice ... acknowledged that Grant Park Christian Academy qualifies for a religious exemption under Title IX of the Education Amendments of 1972 and issued a written letter confirming the school’s religious exemption....

Proposed Rule Amendments Say Title IX Bars LGBT Discrimination

Last Thursday, the Department of Education issued a 700-page Release (full text) proposing amendments to the regulations implementing Title IX which bars sex discrimination in education programs or activities that receive federal funding. Among other things, a new rule, 34 CFR 106.10, would provide:

Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.