On June 16, 2021, the U.S. Department of Education's Office for Civil Rights (OCR) issued a Notice of Interpretation (Notice) related to sex discrimination under Title IX of the Education Amendments of 1972 (Title IX). The Notice continues the recent trend in which President Biden has been changing course from his predecessor on Title IX issues.
Specifically, the Notice provides that the Biden administration will interpret Title IX's prohibition of discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance to include, among other things: (1) discrimination on the basis of sexual orientation and (2) discrimination based on gender identity. The Notice comes one year after the Supreme Court's landmark decision in Bostock v. Clayton County, which held that the prohibition against discrimination on the basis of sex in the employment context provided by Title VII of the Civil Rights Act (Title VII) also encompasses discrimination on the basis of sexual orientation and gender identity.
The Notice notes the parity between the language and intent of Title VII and that of Title XI, and OCR relies on these similar purposes in reaching its interpretation. Specifically, both statutes prohibit sex discrimination, and while Title IX uses the phrase "on the basis of sex" instead of Title VII's "because of" sex, the United States Supreme Court has historically used the two interchangeably. Accordingly, OCR cites Bostock, a United States Supreme Court Case that analyzed the scope of sex discrimination in the employment context under Title VII, to support its interpretation. In Bostock, the United States Supreme Court held that, when an employer discriminates against a person because of their sexual orientation or gender identity, it is necessarily discriminating against that person for "traits or actions [they] would not have questioned in members of a different sex."1
Moving forward, OCR plans to fully enforce Title IX to prohibit discrimination on the basis of sexual orientation and gender identity in all education programs and activities that receive federal funding. Such discrimination includes any "allegations of individuals being harassed, disciplined, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity."
At this point, it is unclear what effect, if any, this Notice will have on various states' legislative efforts that will impact the rights of individuals, on the basis of their sexual orientation or gender identity, to any educational opportunity, including, for example, the more than 20 state legislative proposals seeking to ban transgender girls from participating on female sports teams, or any other extracurricular activity.
The Department of Education is currently in the process of reviewing its rules related to Title XI. Once those rules are finalized, we may have a better understanding of how the Notice will be enforced. We will continue to monitor this process and provide updates as the situation develops. Educational institutions seeking guidance on policy or procedure updates related to this new interpretation, or any other questions related to Title IX, should feel free to contact the authors of this article or any other member of Venable's Higher Education or Labor and Employment Groups.
[1] Bostock v. Clayton County, 140 S. Ct. 1731, 1737, 590 U.S. ___ (2020).