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”

Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations

On April 6, the Department of Education’s Office for Civil Rights (OCR) issued a new letter to students, educators, and stakeholders indicating the process that the Biden Administration will be undertaking on the issues surrounding the Title IX regulations. While light on details, the letter does provide a roadmap for OCR’s next steps and what colleges and universities can expect in the Title IX regulatory arena in the near future. Continue reading “Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations”

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.

President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules

On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” In short, the EO requires the U.S. Department of Education to reassess how it directs college campuses to investigate sexual violence – specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other regulations related to Title IX. Continue reading “President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules”

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”

As New Title IX Rule Goes into Effect, Department Launches New Title IX Website

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”

Department of Education Publishes Title IX Final Rule

On May 19, 2020, the U.S. Department of Education issued its final rule on Title IX of the Education Amendments of 1972 regulations. These are the first comprehensive regulations issued under Title IX since 1975. The final rule, which applies to school districts, colleges and universities, including all institutions of higher education receiving Title IV funding, contains a number of significant changes, such as: a definition for sexual harassment, publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroomlike hearings.

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

OCR Provides Practical Pointers for Postsecondary Institutions to Meet Civil Rights Obligations In Distance Learning Environments

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”

Title IX Final Rule

On May 6, 2020, the U.S. Department of Education issued the Final Rule on Title IX of the Education Amendments of 1972 (“Title IX”) regulations. These are the first comprehensive regulations issued under Title IX since 1975.

The Final Rule goes into effect on Friday, August 14, 2020.  Its provisions will significantly impact K-12 school districts, colleges, and universities. The changes include: a definition for sexual harassment, requirement for publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroom-like hearings. Continue reading “Title IX Final Rule”