The United States Education Department's Office for Civil Rights (“OCR”) issued a Notice of Interpretation on June 16, 2021 to make clear that the Department interprets Title IX to prohibit discrimination based on sexual orientation and gender identity. Title IX prohibits discrimination on the basis of sex in any educational program or activity offered by a recipient of federal financial assistance. OCR is responsible for the Department's enforcement of Title IX. The Notice will guide OCR in conducting investigations alleging discrimination based on sexual orientation and gender identity, but it does not change the process of reporting or investigating individual cases of discrimination.
The Notice of Interpretation stems from the 2020 United States Supreme Court landmark decision in Bostock v. Clayton County, which holds that Title VII protects gay and transgender rights in the workplace. (See our blog post discussing Bostock at https://www.parkercovert.com/2020/06/u-s-supreme-court-rules-to-protect-gay-and-transgender-rights-in-the-workplace.) While on its terms Bostock is only about discrimination in the workplace, constitutional scholars predicted that it would likely open the door to the prohibition of discrimination on the basis of sexual orientation and transgender status in other contexts, on the ground that those instances of discrimination are also based on sex. The Notice is in keeping with these predictions, extending protection to students in any educational program or activity offered by a recipient of federal financial assistance.
While the Notice of Interpretation provides that OCR will apply Title IX to prohibit discrimination based on sexual orientation and gender identity and is therefore of critical importance, it is also important to note that it does not set a legal precedent. However, federal court decisions are very likely to align with the Notice. In fact, in 2020 the Ninth Circuit, which includes California, decided in Parents for Privacy v. Barr that a policy allowing transgender students to use school bathroom and locker facilities that match their self-identified gender in the same manner that cisgender students utilize those facilities does not infringe privacy or parental rights and does not create actionable sex harassment. Further, the United States Supreme Court will determine at the end of the month whether it will hear a case in which the Fourth Circuit aligned with the Ninth Circuit in this regard. If the Supreme Court decides to hear the Fourth Circuit case, it will have before it the very question that the Notice addresses.
In light of the above, it is incumbent upon school districts and community college districts to review their nondiscrimination policies and practices and be mindful of the Notice of Interpretation and applicable legal precedent as they consider how to address allegations of students being harassed, disciplined, 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.