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.
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 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”
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”