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

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”

Mississippi Enacts Law Banning Transgender Athletes from Competing on Female Sports Teams

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.

Biden Issues Executive Order Regarding Gender Identity and Sexual Orientation Discrimination

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”

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 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”

Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic

As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures resulting in potentially discriminatory effects to students.

Recognizing this risk, the Department of Education’s Office for Civil Rights published guidance on March 16, 2020, reminding schools that students’ civil rights must be safeguarded during responses to the COVID-19 pandemic. OCR’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

To read the full text of this Duane Morris Alert, please visit the firm website.

Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic

As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures being overlooked, resulting in potentially discriminatory effects to students.

Recognizing this risk, the Department of Education’s Office for Civil Rights published guidance on March 16, 2020, reminding schools that students’ civil rights must be safeguarded during responses to the COVID-19 pandemic. OCR’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

The Department of Education focused on a few key areas as examples of potential pitfalls: Continue reading “Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic”