On Wednesday, June 16, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) released a Notice of Interpretation, explaining how it interprets Title IX to prohibit discrimination on the basis of sexual orientation or gender identity.
The Notice indicates that OCR will investigate all allegations that an individual has been discriminated against on the basis of sexual orientation or gender identity, including allegations of individuals being harassed, disciplined in a discriminatory manner, 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.
The Notice relies primarily on the United States Supreme Court’s decision in Bostock v. Clayton County, Georgia, in which the Court held that Title VII – which prohibits employment discrimination based on race, color, religion, sex, or national origin – prohibits discrimination in employment based on sexual orientation or gender identity. Since courts interpret Title IX similarly to Title VII, and other courts have held similarly with regard to Title IX, OCR indicated its intent to interpret Title IX to prohibit such discrimination. OCR’s interpretation does not hold the force of law but certainly will influence OCR’s own investigations and will be given weight by courts considering such issues in the future.
The Notice of Interpretation’s announcement of OCR’s interpretation of the issue was not unexpected. On March 8, 2021, President Joe Biden issued an executive order, which stated the president’s policy that, “All students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” And the U.S. Court of Appeals for the Fourth Circuit – whose opinions are binding on federal courts in West Virginia – has already held that a policy which required transgender students to use bathrooms consistent with the gender stated on their birth certificates constituted sexual discrimination in violation of Title IX.
As we’ve indicated in our previous alerts on this issue, schools should be aware of the United States’ policy that discrimination against students based on general identity or sexual orientation constitutes sexual discrimination in violation of Title IX.
Should you have any questions on this issue or others, please contact a member of Dinsmore & Shohl's Education practice group.