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. Continue reading “Civil Rights Division of DOJ Explains Title IX Protects Gender Identity and Sexual Orientation Status, Bringing High-Stakes Showdown with Contrary State Laws One Step Closer”
Arkansas Governor Asa Hutchinson signed into law the Fairness in Women’s Sports Act (“FWSA”) on March 25, 2021. Arkansas now joins Idaho (2020—enjoined by court order) and Mississippi (effective July 1, 2021) in passing a law prohibiting biologically male students from participating in female sports. (Click here for our coverage of those laws).
Summary of the FWSA
Who: The FWSA applies to public K-12 schools, open-enrollment public charter schools, and public 2-year and 4-year institutions of higher learning. It also applies to Continue reading “Arkansas Passes Law Prohibiting Biologically Male Students from Participating in Female Sports”
Mississippi Governor Tate Reeves signed a bill today banning transgender athletes from competing on girls or women’s sports teams. Governor Reeves cited President Biden’s January 20, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (covered here) as a primary reason for the law being necessary in Mississippi.
The law requires interscholastic and intramural sports to designate participation eligibility based on student biological status. Biologically male individuals are then banned from participating in those sports designated as being for “females, women, or girls.” The law applies to public K-12 schools, schools that are members of Mississippi High School Activities Association, public institutions of higher education, and higher education institutions belonging to NCAA, NAIA or NJCCA.
The law also provides a private cause of action. As such, a student “deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation” may bring a legal claim against the school. The law does not specify the types of relief available for such an action.
The law is set to go into effect on July 1, 2021. We expect the ACLU or similar group to challenge the law in federal court and try to enjoin the law from going into effect. Idaho passed a similar law last year, which is currently blocked from going into effect by federal court order.
As anticipated by our prior post, President Biden issued an executive order on his first day in office addressing gender identity and sexual orientation discrimination. In doing so, President Biden is taking aim at dismantling the recently published Department of Education’s internal memorandum, which concluded Title IX’s protections against discrimination on the basis of “sex” do not generally extend to sexual orientation or gender identity.
In the order, Continue reading “Biden Issues Executive Order Regarding Gender Identity and Sexual Orientation Discrimination”
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:
- Does the Bostock decision construe Title IX?
- Does Bostock affect the meaning of “sex” as that term is used in Title IX?
- How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person’s transgender status or homosexuality?
- After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual’s transgender status or homosexuality?
- 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 Continue reading “In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity”
The Department of Education issued its final rule to implement Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities). The final rule was announced on September 9, 2020 with an accompanying Fact Sheet, and was formally published on September 23, 2020. It is scheduled to go into effect on November 23, 2020.
The final rule’s major changes are outlined below, and include a clarification for Title IX as well as new conditions imposed on public and private institutions receiving federal direct grants or subgrants from a state-administered formula program. Continue reading “Department’s New Final Rule Clarifies Title IX Exemption and Introduces Free Speech Requirements for Grant Recipients “
The new Title IX Rule is now in effect as of today (Aug. 14, 2020). As such, all K-12 and postsecondary academic institutions that receive Title IV funding are required to have Title IX policies and procedures in place and to be implementing them going forward. As our readers will remember from our prior in-depth Client Alert, the new Rule governs employees and students, can include incidents on and off campus, requires institutions to adopt a formal process for investigating and resolving complaints (including a live hearing with cross-examination), and an appeals process.
Concurrent with the new Title IX Rule going into effect today, the Department of Education launched a Title IX website. The website is a repository Continue reading “As New Title IX Rule Goes into Effect, Department Launches New Title IX Website”
On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) released additional Q&As in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” clarifying and expanding upon guidance covered in our previous Alert.
As businesses reopen during the COVID-19 pandemic, employers continue to grapple with how to safely return employees to the workforce, particularly those employees with certain underlying conditions identified by the CDC, as well as pregnant employees and those over the age of 65. Continue reading “Paternalistic Employers, Beware: EEOC Addresses Employer Concerns for Workplace Safety via Mandated Accommodations”
The U.S. Department of Education’s Office for Civil Rights recently issued a FAQ in its continuing effort to address civil rights issues during the COVID-19 pandemic. The new guidance focused on disability accommodations, Title IX, and harassment issues.
The overall message was to again remind postsecondary institutions to “stay the course” with their civil rights obligations. Institutions must continue to engage in the interactive process and provide disability accommodations that do not fundamentally alter the academic program and/or are undue burdens. Institutions must also continue to receive, investigate, and resolve harassment complaints. Institutions should adapt their policies to the new distance learning environment, and, if they do, they must inform students, faculty, and staff of any changes.
OCR also offered practical advice for how institutions can meet their civil rights obligations (and take advantage of new technology in doing so): Continue reading “OCR Provides Practical Pointers for Postsecondary Institutions to Meet Civil Rights Obligations In Distance Learning Environments”
On April 3, 2020, the Office for Civil Rights continued its guidance on how institutions can implement distance learning while complying with federal civil rights laws. This guidance is timely because, as we all know, distance learning due to COVID-19 is redefining how most educational institutions operate. When all levels of academic institutions had to close their doors due to stay-at-home orders, many of them opened the proverbial window by turning to online education. Despite its increasing popularity over the past decade or so, distance learning remains an emerging and potentially scary (as well as exciting) landscape for many institutions as they navigate purchasing/installing new technology, implementing new methods of teaching, and ensuring connectivity with students. OCR’s guidance provides a roadmap to this new territory.
In further response to some institutions declining to use distance learning at all because they were unsure of being able to provide a free and appropriate public education (K-12) or appropriate accommodations (postsecondary) to students with disabilities, OCR reiterated: Continue reading “OCR Guidance on Disability Rights and Distance Learning During the COVID-19 Pandemic”