On June 16, 2021, the U.S. Department of Education's Office for Civil Rights ("OCR") issued a Notice of Interpretation titled "The Department's Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County." As anticipated, OCR makes clear through the Notice that it interprets Title IX of the Education Amendments of 1972 ("Title IX") to encompass protection against discrimination based on sexual orientation and gender identity.
OCR explains in the Notice that it bases its interpretation of Title IX on Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020), the June 2020 case in which the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964, which protects against sex discrimination in employment, encompasses a protection against discrimination based on gender identity and sexual orientation. In Bostock, the Court reviewed several lower court cases in which individuals faced adverse employment actions based on their gender identity or sexual orientation. The Court held that treating an individual differently because the individual is transgender or gay is discrimination because of the person's sex, an action prohibited by Title VII.
In the Notice, OCR describes the similarities between the language of Title IX and the language of Title VII in defending its interpretation that Title IX applies to discrimination on the basis of sexual orientation and gender identity. OCR further identifies that numerous lower courts have used the holding in Bostock to interpret Title IX in this manner.
Ultimately, the Notice alerts federally funded education institutions that OCR will use its enforcement jurisdiction under Title IX to investigate allegations of discrimination against individuals based on sexual orientation and gender identity. Public schools, colleges and universities should be prepared to implement their grievance processes under Title IX when they receive allegations of sexual harassment relating to an individual's sexual orientation or gender identity, and should review their policies and grievance processes and procedures concerning Title IX to ensure compliance with OCR's interpretation of the law.
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