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
| Published date | 22 June 2021 |
| Record Number | 2021-13058 |
| Section | Rules and Regulations |
| Court | Education Department |
Federal Register, Volume 86 Issue 117 (Tuesday, June 22, 2021)
[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Rules and Regulations]
[Pages 32637-32640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13058]
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DEPARTMENT OF EDUCATION
34 CFR Chapter I
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
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Interpretation.
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SUMMARY: The U.S. Department of Education (Department) issues this
interpretation to clarify the Department's enforcement authority over
discrimination based on sexual orientation and discrimination based on
gender identity under Title IX of the Education Amendments of 1972 in
light of the Supreme Court's decision in Bostock v. Clayton County.
This interpretation will guide the Department in processing complaints
and conducting investigations, but it does not itself determine the
outcome in any particular case or set of facts.
DATES: This interpretation is effective June 22, 2021.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, Director, Program
Legal Group, Office for Civil Rights. Telephone: (202) 245-7272. Email:
[email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Background: Title IX of the Education Amendments of 1972, 20 U.S.C.
1681-1688, prohibits discrimination on the basis of sex in any
education program or activity offered by a recipient of Federal
financial assistance. The Department's Office for Civil Rights (OCR) is
responsible for the Department's enforcement of Title IX.
OCR has long recognized that Title IX protects all students,
including students who are lesbian, gay, bisexual, and transgender,
from harassment and other forms of sex discrimination. OCR also has
long recognized that Title IX prohibits harassment and other forms of
discrimination against all students for not conforming to stereotypical
notions of masculinity and femininity. But OCR at times has stated that
Title IX's prohibition on sex discrimination does not encompass
discrimination based on sexual orientation and gender identity. To
ensure clarity, the Department issues this Interpretation addressing
Title IX's coverage of discrimination based on sexual orientation and
gender identity in light of the Supreme Court decision discussed below.
In 2020, the Supreme Court in Bostock v. Clayton County, 140 S. Ct.
1731, 590 U.S. __ (2020), concluded that discrimination based on sexual
orientation and discrimination based on gender identity inherently
involve treating individuals differently because of their sex. It
reached this conclusion in the context of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000e et seq., which prohibits sex
discrimination in employment. As noted below, courts rely on
interpretations of Title VII to inform interpretations of Title IX.
The Department issues this Interpretation to make clear that the
Department interprets Title IX's prohibition on sex discrimination to
encompass discrimination based on sexual orientation and gender
identity and to provide the reasons for this interpretation, as set out
below.
Interpretation:
Title IX Prohibits Discrimination Based on Sexual Orientation and
Gender Identity.
Consistent with the Supreme Court's ruling and analysis in Bostock,
the Department interprets Title IX's prohibition on discrimination ``on
the basis of sex'' to encompass discrimination on the basis of sexual
orientation and gender identity. As was the case for the Court's Title
VII analysis in Bostock, this interpretation flows from the statute's
``plain terms.'' See Bostock, 140 S. Ct. at 1743, 1748-50. Addressing
discrimination based on sexual orientation and gender identity thus
fits squarely within OCR's responsibility to enforce Title IX's
prohibition on sex discrimination.
I. The Supreme Court's Ruling in Bostock
The Supreme Court in Bostock held that sex discrimination, as
prohibited by Title VII, encompasses discrimination based on sexual
orientation and gender identity. The Court explained 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.'' 140 S. Ct. at 1742.\1\ As the Court
also explained,
[[Page 32638]]
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.'' Id. at 1737.
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\1\ The Court recognized that the parties in Bostock each
presented a definition of ``sex'' dating back to Title VII's
enactment, with the employers' definition referring to
``reproductive biology'' and the employees' definition ``capturing
more than anatomy[.]'' 140 S. Ct. at 1739. The Court did not adopt a
definition, instead ``assum[ing]'' the definition of sex provided by
the employers that the employees had accepted ``for argument's
sake.'' Id. As the Court made clear, it did not need to adopt either
definition to conclude that discrimination ``because of . . . sex''
encompasses discrimination based on sexual orientation and gender
identity. Id. (``[N]othing in our approach to these cases turns on
the outcome of the parties' debate . . . .''). Similar to the
Court's interpretation of Title VII, the Department's interpretation
of the scope of discrimination ``on the basis of sex'' under Title
IX does not require the Department to take a position on the
definition of sex, nor do we do so here.
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The Court provided numerous examples to illustrate why ``it is
impossible to discriminate against a person'' because of their sexual
orientation or gender identity ``without discriminating against that
individual based on sex.'' Id. at 1741. In one example, when addressing
discrimination based on sexual orientation, the Court stated:
Consider, for example, an employer with two employees, both of
whom are attracted to men. The two individuals are, to the
employer's mind, materially identical in all respects, except that
one is a man and the other a woman. If the employer fires the male
employee for no reason other than the fact he is attracted to men,
the employer discriminates against him for traits or actions it
tolerates in his female colleague. Put differently, the employer
intentionally singles out an employee to fire based in part on the
employee's sex, and the affected employee's sex is a but-for cause
of his discharge.
Id.
In another example, the Court showed why singling out a transgender
employee for different treatment from a non-transgender (i.e.,
cisgender) employee is discrimination based on sex:
[T]ake an employer who fires a transgender person who was identified
as a male at birth but who now identifies as a female. If the
employer retains an otherwise identical employee who was identified
as female at birth, the employer intentionally penalizes a person
identified as male at birth for traits or actions that it tolerates
in an employee identified as female at birth. Again, the individual
employee's sex plays an unmistakable and impermissible role in the
discharge decision.
Id. at 1741-42.
II. Bostock's Application to Title IX
For the reasons set out below, the Department has determined that
the interpretation of sex discrimination set out by the Supreme Court
in Bostock--that discrimination ``because of . . . sex'' encompasses
discrimination based on sexual orientation and gender identity--
properly guides the Department's interpretation of discrimination ``on
the basis of sex'' under Title IX and leads to the conclusion that
Title IX prohibits discrimination based on sexual orientation and
gender identity.
a. There is textual similarity between Title VII and Title IX.
Like Title VII, Title IX prohibits discrimination based on sex.
Title IX provides, with certain exceptions: ``No person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance . . . .'' 20 U.S.C. 1681(a).
Title VII provides, with certain exceptions: ``It shall be an
unlawful employment practice for an employer (1) to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's .
. . sex[ ] . . .; or (2) to limit, segregate, or classify his employees
or applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's . . . sex[ ] . . . .'' 42 U.S.C. 2000e-2(a). (Title VII
also prohibits discrimination based on race, color, religion, and
national origin.)
Both statutes prohibit sex discrimination, with Title IX using the
phrase ``on the basis of sex'' and Title VII using the phrase ``because
of'' sex. The Supreme Court has used these two phrases interchangeably.
In Bostock, for example, the Court described Title VII in this way:
``[I]n Title VII, Congress outlawed discrimination in the workplace on
the basis of race, color, religion, sex, or national origin.'' 140 S.
Ct. at 1737 (emphasis added); id. at 1742 (``[I]ntentional
discrimination based on sex violates Title VII . . . .'' (emphasis
added)); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174
(2005) (``[W]hen a funding recipient retaliates against a person
because he complains of sex discrimination, this constitutes
intentional `discrimination' `on the basis of sex,' in violation of
Title IX.'' (second emphasis added)); Meritor Sav. Bank v. Vinson, 477
U.S. 57, 64 (1986) (``[W]hen a supervisor sexually harasses a
subordinate because of the subordinate's sex, that supervisor
`discriminate[s]' on the basis of sex.'' (emphasis added)).
In addition, both statutes specifically protect individuals against
discrimination. In Bostock, 140 S. Ct. at 1740-41, the Court observed
that Title VII ``tells us three times--including immediately after the
words `discriminate against'--that our focus should be on
individuals.'' The Court made a similar observation about Title IX,
which uses the term person, in Cannon v. University of Chicago, 441
U.S. 677, 704 (1979), stating that ``Congress wanted to avoid the use
of federal resources to support discriminatory practices [and] to
provide individual citizens effective protection against those
practices.'' Id. (emphasis added).
Further, the text of both statutes contains no exception for sex
discrimination that is associated with an individual's sexual
orientation or gender identity. As the Court stated in Bostock, ``when
Congress chooses not to include any exceptions to a broad rule, courts
apply the broad rule.'' 140 S. Ct. at 1747. The Court has made a
similar point regarding Title IX: ``[I]f we are to give Title IX the
scope that its origins dictate, we must accord it a sweep as broad as
its language.'' N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982)
(citations and internal alterations omitted). It also bears noting
that, in interpreting the scope of Title IX's prohibition on sex
discrimination the Supreme Court and lower Federal courts have often
relied on the Supreme Court's interpretations of Title VII. See, e.g.,
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992); Jennings
v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002); Gossett v.
Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176
(10th Cir. 2001).
Moreover, the Court in Bostock found that ``no ambiguity exists
about how Title VII's terms apply to the facts before [it]''--i.e.,
allegations of discrimination in employment against several individuals
based on sexual orientation or gender identity. 140 S. Ct. at 1749.
After reviewing the text of Title IX and Federal courts' interpretation
of Title IX, the Department has concluded that the same clarity exists
for Title IX. That is, Title IX prohibits recipients of Federal
financial assistance from discriminating based on sexual orientation
and gender identity in their education programs and activities. The
Department also has concluded for the reasons described in this
document that, to the extent other interpretations may exist, this is
the best interpretation of the statute.
In short, the Department finds no persuasive or well-founded basis
for declining to apply Bostock's reasoning--discrimination ``because of
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. . . sex'' under Title VII encompasses discrimination based on sexual
orientation and gender identity--to Title IX's parallel prohibition on
sex discrimination in federally funded education programs and
activities.
b. Additional case law recognizes that the reasoning of Bostock
applies to Title IX and that differential treatment of students based
on gender identity or sexual orientation may cause harm.
Numerous Federal courts have relied on Bostock to recognize that
Title IX's prohibition on sex discrimination encompasses discrimination
based on sexual orientation and gender identity. See, e.g., Grimm v.
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as
amended (Aug. 28, 2020), reh'g en banc denied, 976 F.3d 399 (4th Cir.
2020), petition for cert filed, No. 20-1163 (Feb. 24, 2021); Adams v.
Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020),
petition for reh'g en banc pending, No. 18-13592 (Aug. 28, 2020);
Koenke v. Saint Joseph's Univ., No. CV 19-4731, 2021 WL 75778, at *2
(E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-01486,
2020 WL 5993766, at *11 n.61 (M.D. Pa. Oct. 9, 2020).
The Department also concludes that the interpretation set forth in
this document 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. As numerous courts have recognized, a school's
policy or actions that treat gay, lesbian, or transgender students
differently from other students may cause harm. See, e.g., Grimm, 972
F.3d at 617-18 (describing injuries to a transgender boy's physical and
emotional health as a result of denial of equal treatment); Adams, 968
F.3d at 1306-07 (describing ``emotional damage, stigmatization and
shame'' experienced by a transgender boy as a result of being subjected
to differential treatment); Whitaker ex rel. Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044-46, 1049-50
(7th Cir. 2017) (describing physical and emotional harm to a
transgender boy who was denied equal treatment); Dodds v. U.S. Dep't of
Educ., 845 F.3d 217, 221-22 (6th Cir. 2016) (describing ``substantial
and immediate adverse effects on the daily life and well-being of an
eleven-year-old'' transgender girl from denial of equal treatment);
Doe, 2020 WL 5993766, at **1-3 (describing harassment and physical
targeting of a gay college student that interfered with the student's
educational opportunity); Harrington ex rel. Harrington v. City of
Attleboro, No. 15-CV-12769-DJC, 2018 WL 475000, at **6-7 (D. Mass. Jan.
17, 2018) (describing `` `wide-spread peer harassment' and physical
assault [of a lesbian high school student] because of stereotyping
animus focused on [the student's] sex, appearance, and perceived or
actual sexual orientation'').
c. The U.S. Department of Justice's Civil Rights Division has
concluded that Bostock's analysis applies to Title IX.
The U.S. Department of Justice's Civil Rights Division issued a
Memorandum from Principal Deputy Assistant Attorney General for Civil
Rights Pamela S. Karlan to Federal Agency Civil Rights Directors and
General Counsels regarding Application of Bostock v. Clayton County to
Title IX of the Education Amendments of 1972 (Mar. 26, 2021), https://www.justice.gov/crt/page/file/1383026/download.
The memorandum stated that, after careful consideration, including
a review of case law, ``the Division has determined that the best
reading of Title IX's prohibition on discrimination `on the basis of
sex' is that it includes discrimination on the basis of gender identity
and sexual orientation.'' Indeed, ``the Division ultimately found
nothing persuasive in the statutory text, legislative history, or
caselaw to justify a departure from Bostock's textual analysis and the
Supreme Court's longstanding directive to interpret Title IX's text
broadly.''
III. Implementing This Interpretation
Consistent with the analysis above, OCR will fully enforce Title IX
to prohibit discrimination based on sexual orientation and gender
identity in education programs and activities that receive Federal
financial assistance from the Department. As with all other Title IX
complaints that OCR receives, any complaint alleging discrimination
based on sexual orientation or gender identity also must meet
jurisdictional requirements as defined in Title IX and the Department's
Title IX regulations, other applicable legal requirements, as well as
the standards set forth in OCR's Case Processing Manual, www.ed.gov/ocr/docs/ocrcpm.pdf.\2\
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\2\ Educational institutions that are controlled by a religious
organization are exempt from Title IX to the extent that compliance
would not be consistent with the organization's religious tenets.
See 20 U.S.C. 1681(a)(3).
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Where a complaint meets applicable requirements and standards as
just described, OCR will open an investigation of allegations that an
individual has been discriminated against because of their sexual
orientation or gender identity in education programs or activities.
This includes allegations of individuals being harassed, disciplined in
a discriminatory manner, excluded from, denied equal access to, or
subjected to sex stereotyping in academic or extracurricular
opportunities and other education programs or activities, denied the
benefits of such programs or activities, or otherwise treated
differently because of their sexual orientation or gender identity. OCR
carefully reviews allegations from anyone who files a complaint,
including students who identify as male, female or nonbinary;
transgender or cisgender; intersex; lesbian, gay, bisexual, queer,
heterosexual, or in other ways.
While this interpretation will guide the Department in processing
complaints and conducting investigations, it does not determine the
outcome in any particular case or set of facts. Where OCR's
investigation reveals that one or more individuals has been
discriminated against because of their sexual orientation or gender
identity, the resolution of such a complaint will address the specific
compliance concerns or violations identified in the course of the
investigation.
This interpretation supersedes and replaces any prior inconsistent
statements made by the Department regarding the scope of Title IX's
jurisdiction over discrimination based on sexual orientation and gender
identity. This interpretation does not reinstate any previously
rescinded guidance documents.
Accessible Format: On request to the contact person listed under
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your search to documents published by the Department.
Suzanne B. Goldberg,
Acting Assistant Secretary for Civil Rights.
[FR Doc. 2021-13058 Filed 6-21-21; 8:45 am]
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