By: Sean P. Dugan, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On June 16, 2021, the U.S. Department of Education (USDOE) issued a notice of interpretation that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include discrimination based on sexual orientation and discrimination based on gender identity. The USDOE based its interpretation on the Bostock v. Clayton County case, which the United States Supreme Court decided on June 15, 2020.
In Bostock, the Court looked at three cases, two cases where employees were fired after they revealed that they are homosexual, and one where an employee was fired after she told her employee that she is transgender and intended to live and work as a woman. All employees brought suits under Title VII, alleging unlawful discrimination based on sex. Under Title VII, it is, “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”
The Court ruled that it is impossible to discriminate against a person for being homosexual or transgender without basing it on the person’s sex. The Court gave an example of two employees, both of whom are attracted to men, and otherwise identically the same, except that one is a man and one is a woman. If the employer fires the male because he is attracted to men, then the employer intentionally discriminated against him because of his sex.
The USDOE is using Title VII to interpret Title IX because the two statutes protect similar interests. Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” While Title VII uses the phrase, “because of … sex”, instead of Title IX’s, “on the basis of sex”, the Supreme Court has used these phrases interchangeably. Both statutes also specifically protect individuals against discrimination.
The USDOE also recognized that this interpretation of Title IX best suits the statute’s purpose, to guarantee equal opportunity and protect individuals from being harmed by sex discrimination. Many courts have ruled that treating students differently due to sexual orientation or gender identity can cause both emotional and physical injuries to the students. By prohibiting these discriminations, the statute will be able to better protect individuals from harm due to sex discrimination and ensure more equal opportunities for those in education programs or activities that receive federal funding.
This interpretation means that the USDOE’s Office for Civil Rights (OCR) 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. As long as a complaint meets the jurisdictional and other legal requirements, the OCR will open an investigation for discrimination. Types of discrimination that are cause for an investigation include, “allegations of individuals being harassed, disciplines 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.” Any complaint which leads to a finding of discrimination against one or more individuals because of their sexual orientation or gender identity will be resolved by addressing the specific compliance concerns or violations that were found.
