In June of this year in its Bostock v. Clayton County decision, the Supreme Court held for the first time that Title VII’s prohibition on sex discrimination in employment also prohibits discrimination against an individual based on their sexual orientation or transgender status. Because of Title VII’s close connection to Title IX, the statute which protects against sex discrimation in the education context, many expected changes to Title IX enforcement as well following the Bostock decision. The U.S. Department of Education, however, has sent mixed messages on how the ruling will (or will not) impact its enforcement of Title IX.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The Court in Bostock held that discrimination on the basis of an individual’s sexual orientation or transgender status did in fact constitute unlawful discrimination on the basis of “sex,” based on the plain meaning of the word. An employer discriminating against a male employee because of his attraction to other men, for example, presumably would not discriminate against him if he were instead a woman attracted to men. The basis of the discrimination, then, is due to the sex of that employee.
Title IX of the Education Amendments of 1972 applies similar protections against discrimination on the basis of sex in the context of education programs receiving federal assistance. The two statutes were not enacted as part of the same legislation, and employ different language in their prohibitions: Title VII prohibits discrimination “because of . . . sex” and Title IX prohibits discrimination “on the basis of sex.” However, as the 8th Circuit has explained, the two phrases are treated interchangeably under Title VII. Due to the similar language and substantive similarities, Title VII caselaw regularly informs Title IX caselaw and interpretation, with courts looking to Title VII decisions to inform their treatment of Title IX claims.
This now widely-accepted overlap in statutory interpretation is precisely why the U.S. Commission on Civil Rights urged the Trump Administration to reform policies under Title IX to come into compliance with the Supreme Court’s Bostock interpretation of “sex” under Title VII.
Unlike Title VII, Title IX does not explicitly provide for a private right of action for someone to sue based on alleged sex-based discrimination (althought the Supreme Court held that such a private right is implicit in the statute and therefore available). Instead, TItle IX has largely served as a regulatory law, allowing the U.S. Department of Education to promulgate rules and issue guidance around compliance with the statute. The Department’s Office of Civil Rights (OCR) is responsible for investigating and resolving Title IX complaints, but can also initiate investigations. These investigations can result in an education program losing its federal funding. Being able to determine fundamental issues like what will constitute “discriminat[ion],” and when such discrimination will be considered “on the basis of sex” is a huge amount of power for the Department. This is especially true when one considers the scope of the protections; Title IX reaches sexual assault investigation procedures at colleges and universities, opportunities for participation in school sports teams, and employment practices at entities which contain an education program, to name a few.
As it relates to transgender students specifically, Title IX protections have fluctuated depending on the administration. Under the Trump Administration, Betsy DeVos has rolled back much of the Obama-era Title IX protections for these students. In 2017, the Department rescinded guidance issued in 2015 and 2016 which had stated that Title IX required students be admitted in sex-segregated facilities based on their gender identity (as opposed to biological sex). In June of that year, the Department chose to close OCR investigations of discrimination against transgender students, and in 2018, announced it would no longer accept complaints from transgender students related to their acces to sex-segregated bathrooms that match their gender identity. In May of 2020, the Department issued a letter to a handful of Connecticut public school districts and the Connecticut Interscholastic Athletic Conference threatening to withhold federal funds due to their allowing transgender athletes to participate in school sports in accordance with their gender identity.
Following the Bostock decision, the Department of Education has sent mixed messages as to how it plans to apply the ruling (or not) to its Title IX enforcement. Notably, the OCR website was updated to say both that “Bostock does not control the Department’s interpretation of Title IX” but that “nevertheless . . . the Bostock opinion guides OCRs understanding that discrimination against a person based on their status as homosexual or transgender generally involves discrimination on the basis of their biological sex.” This would seem to indicate that the Department did intend to apply Bostock to Title IX enforcement, even while recognizing the undisputed fact that the decision only explicitly applied to Title VII. However, immediately following the language quoted above, OCR lists a number of “resources” with “further information on OCR’s interpretation of Title IX in light of Bostock.” Seemingly in direct contradiction to its proclamation that discrimination based on gender identity or sexual orientation is sex discrimination, the list of resources includes an updated letter to the Connecticut schools under investigation, in which the Department doubles down on its initial position that allowing transgender athletes to participate based on their gender identity violates Title IX, explicitly stating that Bostock does not apply. To add an extra layer of confusion, the list of resources also includes a response letter to a complaint of discrimination based on sexual orientation in which OCR agrees that such discrimination would constitute a Title IX violation, also explicitly citing Bostock.
It’s not clear that the Department’s differentiation between transgender students and queer students under Title IX is a consistent one, especially given its explicit statement that both forms of discrimination would be unlawful. Besides the internal inconsistencies of its own enforcement, there seems to also be tension with how courts have applied Bostock to Title IX cases: the 4th Circuit and the 11th Circuit each ruled prohibiting a transgender student from using the bathroom aligned with their gender identity was a violation of Title IX under Bostock precedent. If it continues to crop up in circuit courts, this may be a question that ultimately is resolved by SCOTUS, this time, without Justice Ginsburg on the bench.