by Maureen A. Lemon and Megan Lamb
In the waning days of the Trump administration, the Department of Education’s Office of Civil Rights (OCR) issued a memo stating that Title IX anti-discrimination protections do not apply to gender identity or LGBTQ status. President Biden immediately reversed course, issuing an executive order requiring government agencies to apply all anti-sex discrimination laws (including Title IX) to biological sex, gender identity, and LGBTQ status.
OCR’s Memorandum of January 8, 2021
In the summer of 2020, the U.S. Supreme Court issued an opinion in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), declaring that Title VII’s provision regarding discrimination on the basis of “sex” was not limited to biological sex, but also included gender identity and sexual orientation.
In response to questions about whether that ruling extends to Title IX anti-discrimination protection, OCR issued a 13-page memorandum on January 8, stating that Bostock only applied to Title VII, not Title IX, discrimination. That opinion would mean no change from any previous OCR determinations regarding sex discrimination or OCR’s definition of “sex” for the purposes of Title IX. A recurring theme throughout the memo is the Department’s assertion that the “ordinary, public meaning of ‘sex’ at the time of Title IX’s enactment was biological sex,” and therefore the holding in Bostock could not, and should not, be applied to Title IX.
Based on this belief, OCR made a number of assertions:
- The definition of “sex” for the purposes of Title IX is biological sex assigned at birth, regardless of the holding in Bostock.
- Schools are not required to admit students into athletic programs or sports based on their preferred gender identity or LGBTQ status, and “if a recipient chooses to provide ‘separate teams for members of each sex’ under 34 C.F.R. §106.41(b), then it must separate those teams solely on the basis of biological sex, male or female and not on the basis of transgender status or sexual orientation, to comply with Title IX.” (emphasis added)
- Schools are not required to allow locker room and bathroom access based on gender identity but can do so based on student’s biological sex.
President Biden’s January 20, 2021 Executive Order
Less than two weeks after OCR’s memo came out, President Biden was inaugurated and issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” This document broadly extends Bostock’s holding to all federal laws prohibiting sex discrimination, including Title IX, stating: “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”
The new Executive Order requires all federal agencies (including OCR) to review any existing orders, regulations, policies, etc. that were promulgated or are administered under a statute that prohibits sex discrimination, such as Title IX, and are (or may be) inconsistent with this new policy. The Order also gives agencies 100 days to develop a plan for carrying out any action that will be needed to comply with the new policy.
What do these conflicting statements mean?
Given President Biden’s Executive Order, OCR’s January 8 memo carries no legal weight. The US DOE will now need to enforce Title IX in line with President Biden’s Executive Order and apply sex discrimination protection broadly: not just to those who are discriminated against based on biological sex, but also to those who are discriminated against based on gender identity or LGBTQ status.
While it appears Bostock will be applied to Title IX discrimination for the duration of the Biden administration, an Executive Order is not a law. The U.S. House of Representatives recently passed the Equality Act that would extend civil rights protections on the basis of sexual orientation and gender identification. At this time, it is doubtful that the Senate will have enough votes to pass the Equality Act.
Until Congress acts or the United States Supreme Court agrees that its holding in Bostock applies to Title IX, we anticipate that legal challenges will continue against school districts that allow or refuse to allow access to bathrooms and locker rooms or participation on school sport teams based on a student’s preferred gender identity or LBGTQ status. As your school district navigates these issues, please contact an ODHC attorney for assistance.