Potential Changes to Title IX Under the New Administration: Gender Identity and Sexual Orientation
On January 20, 2021, President Biden issued an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order suggests that there will be a reversal of many of the Trump Administration’s approaches to LGBTQ equality that will broaden the protections of discrimination against individuals based on their transgender status or sexual orientation under Title IX and other Federal laws. The President’s interpretation of the Supreme Court’s ruling in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) is instrumental to the future of Title IX. To better understand where the Biden Administration is going, it is important to understand where the Trump Administration left off.
Gender Identity and Sexual Orientation Under Title VII
In Bostock, the Supreme Court held that Title VII of the Civil Rights Act prohibits firing individuals because of their transgender status or sexual orientation. Writing for the majority, Justice Neil Gorsuch set forth a test to determine whether a Title VII violation occurred: Would the employee’s sex have yielded a different choice by the employer? The Court reasoned that discrimination based on sexual orientation or transgender status is “inextricably bound up with sex” because the employer intentionally penalizes a person for traits or actions they would have otherwise tolerated in employees of the opposite sex. For more background on the Bostock case, we encourage you to review our prior discussion here.
While Bostock does not address Title IX specifically, courts often look to the interplay between Title VII and Title IX in terms of what constitutes as discrimination on the basis of sex. Title VII prohibits employers from making certain employment decisions “because of” sex. Title IX prohibits discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.
Trump Administration’s Limited Application of Gender Identity and Sexual Orientation to Title IX
Prior to former President Donald Trump’s departure, the Department of Education’s (“Department”) Office of General Counsel issued a Memorandum, which specifically declined to extend the Bostock Court’s interpretation of “sex” to Title IX. Instead, the Memorandum interpreted the meaning of “sex” under Title IX very narrowly, construing “sex” to mean the biological distinctions between males and females.
The Memorandum acknowledged that in some instances discrimination on the basis of gender identity or sexual orientation may fall within the scope of Title IX’s prohibition on gender stereotyping, but stated that the Department’s Office of Civil Rights (“OCR”) would generally not consider different treatment based on gender identity or sexual orientation to be sex discrimination under Title IX because unlike Title VII, Title IX and its implementing regulations, may require consideration of a person’s biological sex, male or female.
New Interpretation of Bostock and Title IX Under the Biden Administration
On President Biden’s first day in office, he issued an Executive Order that emphasized the importance of treating all individuals equally no matter their gender identity or sexual orientation in schools (specifically referencing access to restrooms, locker rooms or school sports), employment, healthcare and housing. The Executive Order demonstrates that the Biden Administration believes the Bostock Court’s reasoning should apply to other Federal laws and their implementing regulations prohibiting sex discrimination – including Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act. The Executive Order suggests that all Federal agencies should prohibit discrimination on the basis of gender identity and sexual orientation, so long as the laws do not contain sufficient indications to the contrary.
Potential Implications for Schools
The Executive Order directs the Federal agencies to consider whether they need to issue new guidance or other actions that are consistent with the purpose and policy of the Order within 100 days of its issuance (by April 30, 2021). Accordingly, it is very likely that the Department of Education, along with other Federal agencies, will provide new guidance as it relates to discrimination on the basis of gender identity and sexual orientation soon. It will be important for schools to monitor any ongoing matters that involve the use of facilities, athletics and other issues that could arise for LGBTQ students.
HMBR will continue to monitor these issues. Should you have any questions or concerns about possible implications for your school, please feel free to contact us at 312-946-1800.