Education Law Update: U.S. Department of Education confirms Title IX protects students from discrimination based on sexual orientation and gender identity

The U.S. Department of Education’s Office of Civil Rights (OCR) issued a Notice of Interpretation on June 16, 2021 explaining that OCR will enforce Title IX to protect students from discrimination based on sexual orientation and gender identity.

Discrimination on the basis of sex is prohibited in any education program or activity offered by a recipient of federal financial assistance under Title IX of the Education Amendments of 1972. The June 16, 2021 Notice of Interpretation includes discrimination based on sexual orientation and gender identity as protected on the basis of sex under Title IX.

The Department’s interpretation is based on the Bostock v. Clayton County decision where the Supreme Court concluded that discrimination based on sexual orientation and gender identity inherently involve treating individuals differently on the basis of their sex. Although the Bostock decision was issued regarding sex discrimination in employment under Title VII of the Civil Rights Act of 1965, as amended, 42 U.S.C. § 2000e et seq., the Department highlights that courts rely on interpretations of Title VII to inform interpretations of Title IX.

Title IX already protected students from harassment and other forms of discrimination based on not conforming to stereotypical notions of masculinity and femininity, but OCR has previously stated that sex discrimination does not encompass discrimination based on sexual orientation or gender identity. This Notice of Interpretation clarifies that OCR now interprets Title IX to protect students from discrimination based on sexual orientation and gender identity.

Many schools already include discrimination based on gender in their policies regarding Title IX due to OCR’s previous determination that Title IX prohibits discrimination based on not conforming to stereotypical notions of masculinity and femininity and because recent court cases have trended in this direction. Schools that have policies which do not include both sexual orientation and gender identity as protected under Title IX will need to update their policies to conform with the Department’s June 16, 2021 Notice of Interpretation and to extend these protections to students facing discrimination based on their sexual orientation and gender identity.

For more information regarding this Notice of Interpretation please contact Patricia A. Hennessy or your Barton Gilman education attorney.

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