Title IX Applies to Cases Involving Sexual Orientation and Gender Identity, Department of Education Advises

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June 18, 2021
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In an apparent reversal of a Memorandum issued late in the term of the prior administration, the U.S. Department of Education has issued an interpretation of Title IX, emphasizing that the law prohibits discrimination based upon sexual orientation or gender identity. The interpretive clarification was announced through the June 16 publication of a Notice of Interpretation (“June 16 Notice”) by the Office for Civil Rights (“OCR”).
 
In the June 16 Notice, penned by Acting Assistant Secretary Suzanne Goldberg, the OCR declares that the enforcement office “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.” As authority for its interpretation, OCR cites the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, which held that discrimination in the workplace under Title VII, based upon sexual orientation or gender identity, is prohibited. This June 16 Notice extends the reasoning of the Bostock decision to matters of discrimination arising under Title IX. 
 
The Notice appears to conflict with a Memorandum dated January 8, 2021, 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 June 16 Notice does not specifically mention the January 8 Memorandum, but cites the Bostock analysis for the proposition that the “plain terms” of Title IX demand this interpretive outcome.
 
The June 16 Notice goes on to warn that, based upon this interpretation, the “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 from the Department.” (See June 16 Notice, page 11)
 
Title IX requirements are complex, and the enforcement landscape continues to evolve. If your institution could benefit from broad experience in Title IX matters, contact the Steptoe & Johnson Higher Education Team.