U.S. Department of Education Issues Notice of Interpretation: Enforcement with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County
On June 16, 2021, the U.S. Department of Education published a Notice of Interpretation explaining that it will enforce Title IX's prohibition on discrimination on the basis of sex to include: (1) sexual orientation; and (2) gender identity.
Bostock and Title IX
The interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—is the basis for the Department’s interpretation of discrimination under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual
orientation and gender identity.
OCR Enforcement
OCR states it 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.
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 harassment, discriminatory discipline, exclusion from, denial of equal access to or being subjected to sex stereotyping, in academic or
extracurricular opportunities and other education programs or activities, as well as denial of the benefits of such programs or activities, or otherwise different treatment because of their sexual orientation or gender identity.
Where OCR’s investigation reveals that one or more individuals has been discriminated against because of their sexual orientation or gender identity, the resolution of such a complaint will address specific compliance concerns or violations identified in the course of the investigation. The interpretation supersedes and replaces any prior inconsistent statements
made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation and gender identity.
What this means for Restrooms, UIL and Participation in Sports
It can be anticipated that transgender students, with their parents’ support, will seek to engage in activities corresponding to their gender identity or expression. This includes use of restrooms, locker rooms, participation in sports, and many other extracurricular activities based upon their gender identity or gender expression. Should their request
be denied, they will likely file complaints and OCR will investigate.
OCR is highly unlikely to accept a denial of a student’s request to participate on a team corresponding to their gender identity, even if it is based upon state law. Prior resolutions of OCR complaints required districts to adopt policies to make clear that transgender students should be treated consistent with their gender identity for purposes of restroom
access.
OCR has encouraged the use of gender gender-neutral facilities for students who are uncomfortable with using sex segregated facilities. In addition to OCR’s ultimate authority to remove federal funding for non-compliance, they could also refer the matter to the U.S. Department of Justice for enforcement, which could file a lawsuit to enforce the
requirements of federal civil rights statutes.
With respect to participation in single sex sports teams corresponding to gender identity or expression, schools need to carefully consider such requests, as denial of the requests can result in investigations and litigation.
Districts should also be aware that in addition to OCR investigations, they are subject to private enforcement actions, seeking declaratory or injunctive relief, which can result in legal fees in the millions of dollars, as civil rights advocacy organizations frequently involve large law firms, utilizing large teams of
attorneys.
What this means for School Districts
Should a complaint be filed, OCR will open an investigation based upon the facial allegations of a complaint, without any input from the school district and the first notification will be a notification letter and a data request. The investigation may begin with one student, but frequently encompass broader issues that OCR identifies.
Administrators may have legitimate concerns regarding opportunistic or false claims regarding sexual orientation, gender identity or gender expression. Administrators need to make individualized determinations with respect to students’ requests related to gender identity and gender expression and should try to reach a mutually agreeable accommodation with
the family regarding their requests. Additionally, staff need to vigorously protect all students from bullying and harassment. Use of ordinary judgment in evaluating the sincerity of claims is not precluded, however, the guidance indicates OCR will vigorously investigate and enforce claims of discrimination related to sex. State law regarding documentation, prompt investigation and response to claims of bullying should be followed and may assist in addressing any student claims
of discrimination related to gender identity or gender expression.
Should any questions or concerns arise, contact Sara Leon & Associates, PLLC for additional guidance regarding these matters.
Author: Hans Graff
