In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity

On January 8, 2021, the Department of Education (“Department”) publicly released a 13-page internal memorandum from the Department’s Office of the General Counsel to the Department’s Office for Civil Rights that sets forth an analysis of Title IX as it relates to sexual orientation and transgender status.  Specifically, the memo addresses the impact of the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) on Title IX. Bostock held that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status.

The memo’s analysis focuses on 5 questions:

      1. Does the Bostock decision construe Title IX?
      2. Does Bostock affect the meaning of “sex” as that term is used in Title IX?
      3. How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person’s transgender status or homosexuality?
      4. After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual’s transgender status or homosexuality?
      5. How does the Department interpret Title IX and its implementing regulations in light of Bostock with respect to athletics, intimate facilities, religious exemptions, and other sex-segregated programs or activities addressed under Title IX and its regulations?

The memo concludes that Bostock does not affect the meaning of “sex” as that term is used in Title IX.

The memo constitutes current Department subregulatory guidance—it is not binding on courts or incoming Department leaders, but could shape the conduct of some institutions of higher education nonetheless. Through this memo and a few others, the Department appears to be releasing subregulatory guidance in an effort to guide policy (even for a short time) after the administration change.  Although we expect that this memo may be a target of scrutiny and/or rescission by incoming Secretary Cardona, any change to this policy is likely to require investigation and an affirmative internal action to either withdraw or discredit this memo, which could take time given the transition.  Moreover, by publicly releasing now what is an internal memorandum, it serves as a form of publicly available subregulatory guidance that would now force the incoming Department to publicly and affirmatively state a public position to change or withdraw it, fostering increased debate over the issue in the public forum.

Questions 1-3: Bostock’s Impact (or lack thereof) on the Definition of “Sex” for Title IX

The memo explains “Bostock does not affect the meaning of ‘sex’ as that term is used in Title IX” because the opinion was “narrowly” decided and “specifically refus[ed] to extend its holding to Title IX.”  The memo notes that Bostock assumes “the ordinary public meaning of ‘sex’ in Title VII means biological distinctions between male and female,” which accords with “OCR’s long-standing construction of the term ‘sex’ in Title IX to mean biological sex, male or female.”

The memo acknowledges that, in some circumstances, “complaints involving discrimination on the basis of transgender status or homosexuality might fall within the scope of Title IX’s non­discrimination mandate because they allege sex discrimination.”  However, the Department “believe[s] a recipient generally would not violate Title IX by, for example, recording a student’s biological sex in school records, or referring to a student using sex-based pronouns that correspond to the student’s biological sex, or refusing to permit a student to participate in a program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality.”

Question 4: Employment Discrimination or Sexual Harassment based on Transgender Status or Homosexuality

Employment

The memo explains that Title IX’s prohibitions only extend to termination of an employee on the basis of sex, meaning a person’s biological sex. But, similar to Bostock, the memo goes one step further and opines that terminating an employee on the basis of the employee’s homosexuality or transgender status necessarily implicates that employee’s biological sex (e.g., acting contrary to biological gender stereotypes, norms, behaviors, etc.).  As such, this type of termination constitutes, at least in part, discrimination on the basis of the employee’s biological sex and would be prohibited by Title IX.

The memo also notes that Title IX and Title VII recognize circumstances where consideration of a person’s biological sex is a bona fide occupational qualification.  In those situations, the employee’s biological sex is an essential function of the position, and Title IX (and Title VII) would not prohibit discrimination on the basis of biological sex.

Sexual Harassment

As we analyzed in prior posts, the Department’s Title IX regulations promulgated under Secretary DeVos define “sexual harassment” as conduct on the basis of sex that qualifies as 1) quid pro quo harassment, 2) unwelcome conduct that effectively denies a person access, or 3) sexual assault, dating violence, domestic violence, or stalking.  The memo explains the Department “continues to interpret ‘conduct on the basis of sex’ as conduct on the basis of a person’s biological sex.”

However, similar to the employment context, the memo again applies logic from Bostock to explain that harassment on the basis of a person’s transgender status or homosexuality may implicate that person’s biological sex (e.g., nonconformity with biological gender stereotypes or norms).  Such harassment would, at least in part, constitute “conduct on the basis of sex.” For example, unwelcome conduct on the basis of transgender status or homosexuality effectively denies a person equal access to the program or activity may constitute sexual harassment prohibited by Title IX.

Question 5: Athletics, Intimate Facilities, Religious Exemption, or other Sex-Segregated Programs/Activities

The memo interprets Bostock as supporting “the Department’s position that Title IX’s statutory and regulatory provisions permit, and in some cases require, biological sex, male or female, to be taken into account in an education program or activity.”

Athletics

The memo interprets Title IX to require “a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality.” Further, “a person’s biological sex is relevant for the considerations involving athletics and distinctions based thereon are permissible . . . because of physiological differences between males and females.” The memo concludes that “if a recipient chooses to provide ‘separate teams for members of each sex’ under 34 C.F.R. § 106.41(b), then it must separate those teams solely on the basis of biological sex, male or female, and not on the basis of transgender status or sexual orientation, to comply with Title IX.”

Intimate Facilities

The memo states “the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing ‘separate toilet, locker room, and shower facilities on the basis of sex’ to regulate access based on biological sex.” The Department recognizes its interpretation is contrary to two federal appellate opinions. However, OCR was “unpersuaded by the Title IX analysis” in those cases because 1) OCR believes “sex” means biological gender, 2) the opinions “failed to rigorously analyze Title IX’s plain text . . . or to fairly address the legal consequences of the Department’s unique implementing regulations,” and 3) the opinions fail to analyze (much less give deference to) the Department’s May 19, 2020 interpretation of “sex.”

Religious Exemptions

The Department concludes Bostock did not affect the statutory exemption for educational institutions controlled by a religious organization.  Moreover, the Department recognizes the potential for its regulations to be superseded by an institution’s rights under the First Amendment and/or Religious Freedom Restoration Act if no exemption were provided.

Other Sex-Segregated Programs/Activities

The memo further provides non-exhaustive examples of other circumstances where Title IX permits institutions to base distinctions on the two biological sexes:

  • The admissions policies of any public institution of undergraduate higher education that traditionally and continually from its establishment has had a policy of admitting only students of one sex.
  • The membership practices of certain organizations such as a social fraternity or social sorority whose members are primarily students at an institution of higher education.
  • Separate mother-daughter and father-son activities.
  • A school’s decision to provide separate housing for members of each sex.
  • A recipient’s decision to provide single-sex classes, extracurricular activities, or schools subject to specific regulatory requirements on the basis of sex.
  • A recipient’s decision to separate students in physical education classes involving contact sports based on each student’s sex, or to conduct separate sessions in human sexuality classes for students of each sex.

For more information please contact, Bryce Young, Katherine D. Brodie, any of the attorneys in the Higher Education Group or the attorney in the firm with whom you are regularly in contact.

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