The U.S. Department of Education’s Office of Civil Rights (“OCR”) recently issued a “Notice of Interpetation” confirming that Title IX protects students from harassment and discrimination based on their sexual orientation and/or gender identity.
This guidance is consistent with the 2020 Supreme Court decision in Bostock v. Clayton County in which the Court ruled that sex discrimination against gay and transgender employees was prohibited under Title VII of the Civil Rights Act. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, prohibits discrimination on the basis of sex in any educational program or activity offered by a recipient of federal financial assistance.
The OCR’s interpretation may offer students another path for pursuing legal remedies under Title IX, particularly in states with fewer protections for LGBTQ+ students. It is expected that this new guidance will be used to address such issues as college sports participation and locker room and bathroom usage consistent with student identities.
In light of the guidance, colleges and universities should review their Title IX policies with legal counsel and communicate with faculty and staff about the implications of the policy. They should also consider updates to internal processes and policies to ensure compliance when claims of harassment or discrimination are brought to campus officials.
Taking proactive steps is important because the OCR warns that it will 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 of Education. 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.”
If you have any questions, or require assistance, please contact Ryan Kauffman.