Title IX Roundup: DOJ Memo Protects LGBTQ+ Students, DOE Launches Reg. Review

Full Alert

The Civil Rights Division of the United States Department of Justice (DOJ) and the Department of Education (DOE) made back-to-back announcements regarding the implementation and application of Title IX. On Monday, April 5, 2021, the DOJ released a three-page memorandum (the Memorandum) confirming that Title IX prohibits discrimination on the basis of sexual orientation and gender identity in educational settings, adopting the United States Supreme Court’s (SCOTUS) reasoning from the landmark Title VII case, Bostock v. Clayton County. On Tuesday, April 6, 2021, the DOE’s Office for Civil Rights (OCR) announced plans to begin a comprehensive review of its Title IX regulations in accordance with the Biden Administration’s March 8^th Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, which we previously covered here.

DOJ Memorandum Applying Bostock to Title IX

On Monday, April 5, 2021, the DOJ released the Memorandum, informing federal agencies that, from the DOJ’s point of view, Title IX prohibits discrimination on the basis of sexual orientation and gender identity. The DOJ issued the Memorandum in response to questions posed by federal agencies pertaining to compliance with the SCOTUS holding in Bostock, and President Biden’s January 25, 2021 Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (E.O. 13988). E.O. 13988 directed executive agencies to review all laws that prohibit sex discrimination, and mandated that they follow the SCOTUS holding in Bostock unless there are “sufficient indications to the contrary.” Bostock is a landmark Title VII decision penned by Justice Gorsuch holding that gender identity and sexual orientation discrimination are prohibited forms of sex-based employment discrimination.

The DOJ concluded that the holding in Bostock applies to Title IX by relying on a combination of the Title IX statutory text, SCOTUS case law, and Circuit court case law. The Memorandum reasoned that the operative Title IX language prohibiting discrimination “on the basis of sex” is substantially similar to the Title VII language prohibiting discrimination “because of sex,” and pointed out that SCOTUS used these phrases interchangeably in Bostock. The DOJ cited to appellate precedent from several federal circuits for further support as well.  The DOJ 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.” The DOJ further noted that federal courts routinely rely on Title VII interpretations to inform Title IX decisions.

While the Memorandum directs federal agencies to protect LGBTQ+ people in implementing and enforcing Title IX, the DOJ makes clear that the Memorandum “does not prescribe any particular outcome with regard to enforcement,” as each Title IX claim requires its own fact-based inquiry.

The DOJ released the Memorandum in the wake of state legislatures in Arkansas, Tennessee, and Mississippi enacting laws that prohibit transgender student athletes from playing on sports teams that correspond with their gender identities. These state laws potentially conflict with the Memorandum and with E.O. 13988, which states that students “should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” potentially foreshadowing future Title IX litigation on this issue. Ballard Spahr will continue to monitor and report on related developments.

DOE Plans to Review Title IX Regulations

The DOE announced on Tuesday, April 6, 2021, that it would undertake a comprehensive review of Title IX regulations in accordance with the March 8 Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.

In a letter to key stakeholders, including students, educators, and other members of the public, the DOE requested input on Title IX regulations. The DOE invites as many interested parties as possible to share their perspectives through oral and written comments at an upcoming public hearing. In particular, the DOE seeks the “public’s views and insights on the issue of sexual harassment in school environments, including sexual violence, and discrimination based on sexual orientation and gender identity.” This feedback will inform the DOE’s decisions about any necessary changes to its Title IX regulations in order to “to [ensure] equal and nondiscriminatory access to education for students in schools across the nation.” During this review process, the existing Title IX regulations, as amended in August 2020, remain in effect.

In the coming weeks, the DOE will post further information about the upcoming public hearing on the OCR News Room page, as well as a future notice of proposed rulemaking. Ballard Spahr will continue to monitor these updates and announce opportunities for public comment. 

Attorneys in Ballard Spahr’s Education Group advise schools and universities on a wide range of education law issues, including drafting public comments on their behalf and assisting with updating their Title IX policies and procedures.