The Department of Education issued on June 16, 2021, a Notice of Interpretation concluding that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. Accordingly, the Department will now “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
In the Notice, the Department analyzes and then adopts the reasoning from the U.S. Supreme Court decision of Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). 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 Bostock Court expressly stated it was not deciding whether its ruling applied to Title IX. In taking up that question, the Department concluded Title VII and Title IX were textually similar (e.g., Title VII’s “because of” sex is similar to Title IX’s “on the basis of” sex), that both protected individuals against discrimination, and that neither statute contains an express exclusion of sexual orientation or gender identity. As such, the Department concluded Bostock’s holding extends to Title IX.
The Department is not alone in extending Bostock to Title IX. Several federal courts have held the same, and the U.S. Department of Justice’s Civil Rights Division recently issued a memorandum concluding likewise. And the Department is following President Biden’s January 20, 2021, Executive Order requiring all agencies to review and, if necessary, change all policies to protect against discrimination on the basis of sexual orientation or gender identity.
However, the Department is now breaking from the January 8, 2021 internal memorandum from the Department of Education’s Office of the General Counsel, which concluded that Title IX did not extend to sexual orientation and gender identity. The prior memorandum was issued during the Trump administration, and its viability has been dubious since President Biden’s executive order.
The Notice was sent to the Office of the Federal Register for printing and, once published, will become official guidance.
Institutions Should Review Policies
Institutions at all levels of education should review their policies, practices, and procedures to ensure compliance with this new guidance. For example, it will be important to ensure that statements of non-discrimination are updated to include sexual orientation and gender identity. Additionally, activities or policies that have traditionally treated students different on the basis of gender identity, should be given careful scrutiny. These include dress codes, housing policies, and extra curricular activities, among other things.
The Stage Is Set for a Federalism Showdown
The Department has now set the stage for a showdown between federal Title IX enforcement and a growing number of state laws that require academic institutions to limit participation in sports on the basis of biological sex.
Schools of all levels and status (e.g., private, public, nonprofit, for-profit), as well as athletic agencies, must carefully navigate the growing schism between federal and state laws. And the consequences of a misstep could be disastrous—violating Title IX exposes schools to risk of fines, litigation, and/or potential loss of federal funds (or expensive and time-consuming responses to Department investigations), whereas violating these state laws can expose schools to private lawsuits by students (including compensatory damages and attorneys’ fees) as well as state agency enforcement actions.
As always, please contact Ed Cramp, Bryce Young, or the Duane Morris LLP attorney with whom you are familiar for more guidance on this issue.