Sex Discrimination 2.0

by Felicia Webb

One year ago, the United States Supreme Court handed down their decision in Bostock v. Clayton County. In making its decision, the Supreme Court found that employers who discriminate against employees based on sexual orientation and/or gender identity are inherently treating employees differently because of their sex, the exact practice Title VII prohibits in all expressions. The full Bostock opinion can be read here.

Since the Bostock decision was handed down, the public school community has been waiting and expecting the Department of Education to issue guidance on the decision’s applicability to Title IX and public schools. As of June 16, 2021, the wait is over. The Department of Education’s Office for Civil Rights (OCR) issued a Notice of Interpretation yesterday clarifying that it will enforce Title IX’s prohibition on discrimination on the basis of sex including (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

In its Notice, OCR explains it has long recognized Title IX protects all students, including students who are homosexual, bisexual, and transgender, from harassment and other forms of discrimination. Further, OCR has acknowledged Title IX prohibits discrimination against all students who may not conform to stereotypical ideas of masculinity and femininity. However, OCR admitted that it has at times stated Title IX’s prohibition on discrimination based on sex stopped short of prohibiting discrimination based on sexual orientation and gender identity. As a result, OCR issued its Notice of Interpretation to make clear that the Department of Education “interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity.”

OCR gleaned its interpretation by following the analysis of the Supreme Court in Bostock and identifying the textual similarities between Title VII and Title IX. Noting both statutes prohibit sex discrimination, with Title IX utilizing the phrase “on the basis of sex” and Title VII using “because of” sex and acknowledging the Supreme Court has used both phrases interchangeably. Further, various federal courts, including the 4th and 11th Circuit, have relied on Bostock in determining that Title IX’s prohibition against discrimination based on sex includes discrimination based on sexual orientation and gender identity. Lastly, OCR concluded the interpretation provided in its Notice “is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination.”

In other, but related news, Lieutenant Governor Dan Patrick asked Governor Greg Abbott to call a special legislative session in June to address three bills that died in the Texas House of Representatives last month. One of the bills concerned banning transgender students from playing on sports teams based on their gender identity. As of today, Governor Abbott has not acted on the Lieutenant Governor’s request to put the three bills, including the gender-related bill, on the agenda for a special session, but has expressed disappointment that the bills did not survive the regular session. It is unclear whether OCR’s Notice of Interpretation will spur any action on the part of the Texas Legislature.

If you would like to read the full Notice of Interpretation, click here.

If you have any additional questions about this Notice or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

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