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By: Lily Crespo Esq.
Quick takeaway: As is often the case with any shifts in governmental policy, there are some questions that remain to be answered. Perhaps the most notable is the extent to which OCR’s enforcement will be used against religious schools that have sincerely held doctrinal beliefs that are at odds with this extension of Title IX’s protections to cases involving sexual orientation or gender identity. Until that potential collision occurs, however, educational institutions that receive federal funds are on notice that the scope of their preexisting Title IX policies and practices must be reevaluated and expanded in step with further developments.
What happened: The United States Department of Education’s Office for Civil Rights [OCR] has issued a new interpretation of Title IX, recognizing that it prohibits discrimination on the basis of sexual orientation and gender identity. OCR’s interpretation follows, and is based upon, the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court arrived at the same conclusion in the context of Title VII’s proscription against workplace, gender-based discrimination. This interpretation constitutes a reversal of a Trump-era policy, for in the immediate aftermath of Bostock, OCR had vigorously denied that its holding applied to Title IX.
Bostock aftershocks: Relying on Bostock, OCR quoted the Supreme Court’s reasoning therein, writing both “that to discriminate on the basis of sexual orientation or gender identity ‘requires an employer to intentionally treat individual employees differently because of their sex,’” and that “when an employer discriminates against a person for being gay or transgender, the employer necessarily discriminates against that person for ‘traits or actions it would not have questioned in members of a different sex.’” OCR further cited the concrete examples Justice Gorsuch employed in order to illustrate the practical application of the Court majority’s reasoning.
What the announcement means for schools: the Education Department’s announcement does not change the process of reporting or investigating individual cases of discrimination. And it is unclear how far the new interpretation of the ruling will go to address legislative efforts to restrict rights based on gender identity. That includes the recent Montana legislation that requires students to participate in sports according to their gender at birth.
The Department of Education’s Notice of Interpretation is available here.
More information and resources for LGBTQ+ students are available here.
For assistance reviewing your policies, procedures, and practices to ensure compliance with the NOI, please contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300.