NAICU Washington Update

Education Department Releases Guidance on LGBT Discrimination

September 03, 2020

The Department of Education’s Office for Civil Rights (OCR) issued two policy letters indicating how it will interpret Title IX’s application to discrimination against lesbian, gay, bisexual, and transgender (LGBT) students in the wake of the Supreme Court’s ruling in Bostock v. Clayton County. Although the letters address discrimination in the context of high school athletics, the guidance represents “a formal statement of OCR’s interpretation of Title IX” and is therefore applicable to colleges and universities.
In Bostock, the Supreme Court held that LGBT individuals are protected under a federal employment law that prohibits sex discrimination. While acknowledging that “the Bostock opinion guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex,” the department appears to have limited its interpretation regarding the application of Title IX to LGBT students in some important ways.
In the first policy letter, the department argues that, due to significant differences between workplaces and schools, the Court’s interpretation of the employment discrimination law at issue in Bostock does not control the department’s interpretation of Title IX. Nevertheless, the department acknowledges that the Court’s ruling stands for the proposition that discrimination based on sex encompasses discrimination on the basis of sexual orientation and gender identity. Accordingly, the department concluded that it will open a Title IX investigation into a complainant’s allegations that they experienced bias based on their sexual orientation.
The second policy letter comes in response to a complaint alleging that allowing transgender high school athletes in Connecticut to participate in women’s sports violates the rights of female athletes under Title IX. Like the first letter, this one outlines the department’s view that the Bostock ruling does not extend to cover all aspects of Title IX. Emphasizing that the Court declined to address how its decision would affect other statutes, the department observes that “one of Title IX’s crucial purposes is protecting women’s and girls’ athletic opportunities.”
Likewise, noting that the Title IX regulations specifically authorize single-sex teams, the department states that it interprets Title IX to authorize single-sex teams based only on biological sex, not gender identity. Thus, the department concludes that “Title IX does not permit a biologically male student to compete against females on a sex-segregated team or in a sex-segregated league.” The letter also notifies the respondents that the department intends to pursue enforcement action if they fail to come into compliance.
Notably, in a separate Title IX ruling last month, a federal district court temporarily blocked an Idaho state law that prohibits transgender female students from participating on sports teams that match their gender identity. Despite the department’s recent guidance, litigation regarding the participation of transgender female students in high school and college athletics is likely to continue for some time.

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