Tuesday, June 22, 2021

Department of Education Issues Notice Applying the Bostock Decision to Title IX

On June 16, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR), which enforces Title IX of the Education Amendments of 1972, released an official notice of interpretation regarding the Supreme Court’s decision in Bostock v. Clayton County. The Court in Bostock held that employer’s prohibition against discriminating “on the basis of sex” applies to an employee’s sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. OCR’s notice extends protections afforded by Bostock to students falling under Title IX’s protection.

Courts and administrative agencies often rely on interpretations of Title VII on how to interpret provisions in Title IX because of similarities in both laws. In its letter, OCR indicates that the “Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock . . . properly guides the Department’s interpretation of discrimination ‘on the basis of sex’ under Title IX . . . .” OCR came to this conclusion based on several relevant factors, including the similarity between Title VII and Title IX; several federal courts’ recognition that Title IX’s prohibition on sex discrimination include discrimination based on sexual orientation and gender identity; and the Department of Justice’s written guidance applying the Bostock principles to Title IX.

When a complaint of discrimination involving a student’s gender or sexual identity occurs in an educational context that meets applicable standards, OCR will investigate each complaint and apply this new guidance.

Under U.S. Department of Education jurisdiction, complaints can include allegations of individual harassment; discriminatory discipline procedures; exclusion, denial, or subjection to sex stereotyping in academic or extracurricular programs and other activities; denial of benefits; or different treatment because of a student’s sexual orientation or gender identity. While each case of sex discrimination brought to the Department will be evaluated individually, this notice will guide any investigatory and adjudicatory actions undertaken by the agency’s staff.

This interpretation signals the renewed focus of federal agencies on transgender rights and may be a bellwether of future decisions securing rights of individuals, including employees, based on gender identity.