On Wednesday, June 16, 2021, the United States Department of Education Office for Civil Rights (“OCR”) released a Notice of Interpretation (“Interpretation”) effectively prohibiting discrimination based on sexual orientation and gender identity in the context of Title IX. Title IX prohibits discrimination based on sex in any educational program or activity receiving Federal financial assistance, which includes most colleges, universities, and K-12 institutions. The Interpretation expands the meaning of “based on sex” under the statute to include sexual orientation and gender identity.
Basis of the Interpretation
The OCR’s Interpretation is consistent with the June 15, 2020, United States Supreme Court ruling in Bostock v. Clayton County. 140 S. Ct. 1731 (2020). In Bostock, a case interpreting Title VII of the Civil Rights Act of 1964, the Court determined that unlawful discrimination “because of…sex” includes discrimination based on sexual orientation and gender identity. The Court held that an employer who fires an individual employee merely for being gay or transgender violates Title VII. The Court provided this example to demonstrate its reasoning:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Bostock v. Clayton Cty., 140 S. Ct. 1731, 1741 (2020).
The OCR broadened the Bostock analysis, which was decided in the context of Title VII, to also apply to Title IX for three reasons stated in the Interpretation: (1) textual similarities exist between Title IX and Title VII; (2) some federal cases decided since Bostock have applied Bostock to Title IX; and (3) the United States Department of Justice’s Civil Rights Division has concluded that the Bostock analysis applies to Title IX.
Not only does the OCR Interpretation mirror the Bostock decision, but it also echoes two Executive Orders enacted earlier this year by the Biden administration: “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” (issued January 20, 2021); and “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” (issued March 8, 2021).
Application of the Interpretation
The Interpretation states that 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.” These discrimination claims, like any other sex-based claim, must meet the requirements set forth in Title IX and the Department of Education’s Title IX regulations. The Interpretation provides guidance in handling complaints and investigations and does not guarantee any particular outcome. Complaints are to be evaluated by the same standard as any other sex discrimination claim that complies with the requirements.
Allegations that the OCR will investigate based on the Interpretation include those of individuals being “harassed, disciplined 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.”
The OCR has the authority to enforce its regulations against noncompliant educational institutions under 20 U.S. Code §1682. Section 1682 requires that rules, regulations, and orders be approved by the President of the United States to be effective. Interpretations, however, do not need Presidential approval to be effective because it is merely a guideline to interpret Title IX. Equity in Ath., Inc. v. Dept. of Edn., 504 F.Supp.2d 88, 109 (W.D.Va.2007). As such, the Interpretation is not a regulation in itself, but rather provides guidance on Title IX requirements. The OCR can enforce compliance with these requirements by the termination of or refusal to grant or continue assistance to any program found to have failed to comply with OCR requirements. The termination or refusal will be limited to the particular program or part of the program found to be out of compliance with OCR requirements. Section 1682 also authorizes enforcement by “any other means authorized by law.” The Code of Federal Regulations §100.8(a) offers guidance as to what may constitute such “other means,” suggesting a reference to the U. S. Department of Justice or a comparable proceeding under state or local law. “Other means” are not limited to judicial action, however, and could include any other legal means of enforcement not listed in §1682.
Practical Effect of the Interpretation on Educators and Students
The OCR is not a legislative body, nor a judicial one, and thus its Interpretation is not law. That is not to say, however, that the Interpretation should be disregarded. In practice, this Interpretation serves as the Department of Education’s notice of how it will be enforcing Title IX moving forward. Once the issue reaches the courts, each jurisdiction is entitled to make its own ruling on the issue and we may see jurisdictional differences in how the statute is ultimately interpreted. Until then, it is important to be aware of the Interpretation and the OCR’s position that claims of sexual harassment on the basis of sexual orientation and gender identity constitute Title IX matters that should be handled in accordance with the 2020 Amendment to the Title IX Regulations.
In terms of how educators and students can adjust to this change, it is advisable for all educational institutions that fall under the purview of Title IX to review their current policies and procedures to ensure that they are in compliance with the changes under the Interpretation. It should be noted here, however, that educational institutions controlled by religious organizations may still be exempt from Title IX to the extent compliance would be inconsistent with the organization’s religious tenets. See 0 U.S.C. § 1681(a)(3). Institutions should consult legal counsel to determine what, if any, action should be taken to comply with the Interpretation’s guidance and whether they may be exempt for religious reasons.
Moving forward, educators and students can expect to receive further clarification about this Interpretation and its application in practice from the OCR. The OCR in conjunction with the U.S. Department of Justice’s Civil Rights Division released this fact sheet to give institutions examples of the kinds of incidents the OCR can investigate. The OCR also said in a “Letter to Educators on Title IX’s 49th Anniversary” on June 23, 2021, that the OCR anticipates publishing in the Federal Register a notice of proposed rulemaking to amend the Department’s Title IX regulations. Critchfield will provide updates if this change does occur.
Please do not hesitate to contact your Critchfield attorney should you have any questions in regard to the subject matter of this article.