Title IX bars discrimination against LGBTQ+ students

Districts should review their nondiscrimination policies and practices, attorney says
By: | June 16, 2021

The U.S. Education Department’s Office for Civil Rights issued a Notice of Interpretation explaining its enforcement of Title IX’s prohibition on discrimination on the basis of sex, including discrimination based on sexual orientation and gender identity.

OCR’s interpretation stems from the U.S. Supreme Court decision in Bostock v. Clayton County, which reasoned “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The executive order provides clarity on the policy of the OCR and how it will enforce Title IX, at least under the current administration, according to Laura Anthony, attorney with Bricker & Eckler LLP in Columbus, Ohio.

“While the clarification is helpful for schools to understand that OCR will apply Title IX to discrimination based on sexual orientation and gender identity, it does not set precedent for purposes of litigation,” said Anthony.

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“However, there are many federal court decisions that align with OCR’s clarification that Title IX prohibits discrimination in education programs and activities based on gender identity and sexual orientation,” she continued. “So, districts should be mindful of those decisions and review their nondiscrimination policies and practices to ensure that they are consistent with the legal precedent in their jurisdiction.”

In Grimm v. Gloucester County School Board, the 4th Circuit Court of Appeals joined the 3d, 7th, 9th, and 11th Circuits in striking down district bathroom policies that exclude transgender students from using the bathroom that matches their gender identity. The Supreme Court will be considering the Virginia district’s petition for cert in Grimm v. Gloucester County School Board on June 24.

Wednesday’s announcement comes in the wake of a week-long public hearing in which the department gathered input into potential updates to Title IX. Participants were particularly focused on the participation of transgender students in girls’ sports.

The Notice of Interpretation aligns with President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity and his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination—and our LGBTQ+ students have the same rights and deserve the same protections,” stated Education Secretary Miguel Cardona, who directed the OCR to thus enforce Title IX.”Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination.”

Johnny Jackson covers special education issues for LRP Publications.