In One Of Its Final Actions, Department Of Education Releases Internal Memorandum Analyzing Title IX As It Relates To Sexual Orientation And Gender Identity

Published date15 January 2021
Subject MatterEmployment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Education
Law FirmDuane Morris LLP
AuthorMr Bryce Young

On January 8, 2021, the Department of Education ("Department") publicly released a 13-page internal memorandum from the Department's Office of the General Counsel to the Department's Office for Civil Rights that sets forth an analysis of Title IX as it relates to sexual orientation and transgender status. Specifically, the memo addresses the impact of the U.S. Supreme Court's decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) on Title IX. Bostock held that the definition of "sex" in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status.

The memo's analysis focuses on 5 questions:

  1. Does the Bostock decision construe Title IX?
  2. Does Bostock affect the meaning of "sex" as that term is used in Title IX?
  3. How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person's transgender status or homosexuality?
  4. After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual's transgender status or homosexuality?
  5. How does the Department interpret Title IX and its implementing regulations in light of Bostock with respect to athletics, intimate facilities, religious exemptions, and other sex-segregated programs or activities addressed under Title IX and its regulations?

The memo concludes that Bostock does not affect the meaning of "sex" as that term is used in Title IX.

The memo constitutes current Department subregulatory guidance—it is not binding on courts or incoming Department leaders, but could shape the conduct of some institutions of higher education nonetheless. Through this memo and a few others, the Department appears to be releasing subregulatory guidance in an effort to guide policy (even for a short time) after the administration change. Although we expect that this memo may be a target of scrutiny and/or rescission by incoming Secretary Cardona, any change to this policy is likely to require investigation and an affirmative internal action to either withdraw or discredit this memo, which could take time given the transition. Moreover, by publicly releasing now what is an internal memorandum, it serves as a form of publicly available subregulatory guidance that would now force the incoming Department to publicly and affirmatively state a public position to change or withdraw it, fostering increased debate over the issue in...

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