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U.S. Department of Education Issues Guidance Interpreting Title IX To Cover Discrimination Based on Gender Identity and Sexual Orientation

On June 16, 2021, the U.S. Department of Education issued a Notice of Interpretation of Title IX,  which prohibits sex discrimination in education programs receiving federal financial assistance. The  guidance does not address specific LGBTQ+ student issues that schools have been navigating in recent  years, such as names/pronouns, restroom/locker room access, and parent rights. It does, however,  provide insight into how the Office for Civil Rights will process complaints alleging discrimination  based on sexual orientation or gender identity. 

The new guidance from the Department of Education states, “The Department issues this Notice of  Interpretation to make clear that the Department interprets Title IX’s prohibition on discrimination ‘on  the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.”  The Department’s interpretation is largely based on the U.S. Supreme Court’s decision in Bostock v.  Clayton. In Bostock, the Supreme Court ruled that Title VII, which prohibits sex discrimination in  employment, covers discrimination based on sexual orientation and gender identity. The Court  reasoned that discrimination on the basis of sexual orientation or gender identity involves treating  individuals differently because of their sex.  

In extending the Court’s analysis in Bostock to Title IX, the Department considered the following: • The textual similarity between Title VII and Title IX; 

  • Additional case law recognizes that the reasoning in Bostock applies to Title IX, and that  differential treatment of students based on gender identity or sexual orientation may  cause harm; and 
  • The U.S. Department of Justice’s Civil Rights Division has concluded that Bostock’s  analysis applies to Title IX. 

The guidance goes on to discuss how the Office for Civil Rights (OCR) will implement this  interpretation. It states, “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.” If a complaint meets jurisdictional and other legal requirements, as  well as the standards set forth in OCR’s Case Processing Manual, “OCR will open an investigation of  

allegations that an individual has been discriminated against because of their sexual orientation or  gender identity in education programs or activities. This includes allegations of individuals being  harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to  sex stereotyping in academic or extracurricular [programs or activities], or otherwise treated differently  because of their sexual orientation or gender identity.” The Department is careful to point out, “While  this interpretation will guide the Department in processing complaints and conducting investigations, it  does not determine the outcome in any particular case or set of facts.”  

We can likely expect the Biden Administration to issue follow-up guidance specifically addressing the  rights of transgender students and expectations for schools, similar to the Dear Colleague Letter on  Transgender Students that was issued by the Obama Administration and later rescinded by the Trump  Administration.  

While we wait for more specific guidance from the Department of Education and additional cases to  work their way through the courts, we continue to recommend that schools address LGBTQ+ student  needs and concerns on a case-by-case basis. We also recommend that schools develop procedures or  guidelines relating to transgender students which focus on process and do not guarantee a result for  particular requests. For example, the procedures would address issues such as which school  representative students and parents should contact with concerns relating to the student’s gender  identity and expression at school, what information the school may ask for before making a decision,  and communication with parents. 

If you have any questions about this Legal Update, staff training, policy development, or an individual  student issue, please contact Attorney Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, or  your Buelow Vetter attorney.

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