The Department of Education Clarifies That Title IX Applies to Cases Involving Sexual Orientation and Gender Identity

The U.S. Department of Education’s Office for Civil Rights (“Department”) has issued an interpretation of Title IX, emphasizing that the law prohibits discrimination based upon (1) sexual orientation; and (2) gender identity.

The Department’s interpretation stems from the landmark U.S. Supreme Court decision in Bostock v. Clayton County, issued one year ago, in which the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, prohibits discrimination on the basis of sex in any educational program or activity offered by a recipient of Federal financial assistance. The Department’s Office for Civil Rights (OCR) is responsible for the Department’s enforcement of Title IX. OCR has long recognized that Title IX protects all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of sex discrimination. OCR also has long recognized that Title IX prohibits harassment and other forms of discrimination against all students for not conforming to stereotypical notions of masculinity and femininity.

The Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity.

This Notice is an apparent reversal of a Memorandum issued late in the term of the prior administration, written by then Acting Assistant Secretary Kimberly Richey. In that January 8 Memorandum, the Bostock Opinion was interpreted to have been narrow and exclusively applicable to Title VII matters. The recent Notice does not specifically mention the January 8, 2021 Memorandum, but extensively cites the Bostock analysis for the proposition that the “plain terms” of Title IX demand this interpretive outcome.

OCR warns that it will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department. Educators may want to revisit their policies to ensure that they are complying with the Department’s interpretation of Bostock’s applicability to Title IX and provide updated training to their Title IX team to the extent necessary.

Should you have any questions regarding Title IX’s recent Notice, please contact Maria Fracassa Dwyer at mdwyer@clarkhill.com, Vanessa M. Kelly at vkelly@clarkhill.com or any other member of Clark Hill’s Title IX team.