The Department of Justice’s Civil Rights Division released a March 26, 2021 memorandum explaining the Division’s position that Title IX prohibits discrimination on the basis of transgender and sexual orientation status. In so concluding, the Division seeks to expand to Title IX the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., which held that Title VII’s definition of “sex” prohibited discrimination on the basis of sexual orientation and gender identity in the employment context.
The Division characterizes its advice as a supposed “starting point” for federal agencies. But it is more than that—the DOJ “is charged with coordination of the implementation and enforcement of Title IX by Executive agencies.” As such, the Division’s guidance will be highly instructive to federal agencies—most (if not all) are likely to follow suit—as well as the courts.
As readers of our blog know, President Biden’s January 20, 2021 Executive Order required all federal agencies to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that may be inconsistent with Biden’s stated policy of applying to all federal laws Bostock’s definition of “sex” (i.e., including gender identity and sexual orientation). The agencies were then to develop plans to change or implement policies to accord with this expanded definition of “sex.” Agencies are required to complete their review and development of remedial plans by April 30, 2021.
The Department of Education’s Office for Civil Rights released a letter (discussed here) explaining the steps it is taking to complete its review, but has not stated a definitive outcome as of yet.
The Stage is Almost Set: The Division’s memorandum brings us one step closer to a high-stakes clash between federal agency enforcement of Title IX to protect transgender and sexual orientation status versus the quickly growing number of state law bans/limits on the same basis (e.g., biologically male individuals prohibited from female sports). Schools are in the crosshairs of this clash, as the stakes for violating either law exposes schools to risk of fines, litigation, and/or potential loss of federal funds for violating Title IX (or expensive and time-consuming responses to Department investigations) versus private lawsuits by students (including compensatory damages and attorneys’ fees) for violating the state laws.
Schools of all levels and status (e.g., private, public, nonprofit, for-profit), as well as athletic agencies, should be on high alert and stay vigilant as they carefully navigate the growing conflict between state and federal law.
As always, please contact Bryce Young or the Duane Morris LLP attorney with whom you are familiar for more guidance on this issue.