We knew it was coming, and now it is here. President Biden’s Department of Education has released official guidance regarding enforcement of Title IX. In a reversal from one of the last actions of the Department under President Trump, the Department will now interpret Title IX as prohibiting discrimination on the basis of sexual orientation or gender identity.
Restock your Bostock Knowledge
The guidance relies heavily on last summer’s Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020). Bostock held that Title VII prohibits employers from taking adverse action against an employee because of the employee’s sexual orientation or gender identity. As the Court explained, basing an adverse employment decision on an employee’s sexual orientation or gender identity necessarily requires the employer to reference that employee’s sex, which Title VII prohibits. The Department is now applying that same logic to Title IX.
While the Department relies most on Bostock, it incorporates some other familiar names as well, including Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) and Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), both cases where transgender students prevailed over school districts.
Targets Acquired
The Department goes into some detail on how this is going to change enforcement, explicitly referring to individuals who are:
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 guidance remains silent on how this interpretation will apply in various circumstances. For example, Title IX specifically allows school districts to “provide separate toilet, locker room, and shower facilities on the basis of sex,” (so long as the facilities provided for students of one sex are comparable to those facilities provided to students of the other sex). 34 C.F.R. § 106.33. The new guidance does not explain how those certain sex-segregated facilities will be affected by the Department’s interpretation. We have a sense of the side of the scale on which OCR may place its thumb in certain circumstances, but this guidance leaves important policy questions unaddressed. As always, the devil will be in the details.
If your school has any questions about the guidance or how your school’s operations may be affected, please don’t hesitate to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, Jordan, or Tyler at (402) 804-8000.