Following up on President Joe Biden’s Executive Orders of January 20 and March 8, 2021, and a March 26 Memorandum by the Civil Rights Division of the Department of Justice, the U.S. Department of Education announced on June 16 that it is publishing a “Notice of Interpretation” in the Federal Register confirming that Title IX of the Education Amendments of 1972, which prohibits educational institutions that received federal funding from discriminating against students “on the basis of sex,” applies to discrimination because of sexual orientation or gender identity (transgender status).
The announcement came just a year after the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status, in Bostock v. Clayton County, Georgia. In Bostock, the Court combined cases from the 2nd, 6th and 11th Circuit Courts of Appeals involving two gay men and a transgender woman, and voted 6-3 that any discrimination against an employee because they are gay, lesbian or transgender is necessarily at least in part because of their sex. President Donald J. Trump’s first appointee to the Court, Justice Neil Gorsuch, wrote the opinion for the Court by assignment from Chief Justice John Roberts, who joined the opinion together with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.
Although the Bostock decision directly interpreted only Title VII, its reasoning clearly applied to any law that prohibits discrimination “because of sex” or “on the basis of sex,” as the Education Department’s Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, wrote in the Notice issued on June 16. In his January 20 Executive Order, President Biden directed all Executive Branch agencies to consider the implications of the Bostock decision for their policies and programs, and to apply the reasoning of that decision to the extent it was consistent with purposes of the particular policies and programs. His March 8 Executive Order explicitly referenced sexual orientation and gender identity in “guaranteeing an educational environment free from discrimination on the basis of sex.”
“After reviewing the text of Title IX and Federal courts’ interpretation of Title IX,” wrote Goldberg, “the Department has concluded that the same clarity [that the Supreme Court found under Title VII] exists for Title IX. That is, Title IX prohibits recipients of Federal financial assistance from discrimination based on sexual orientation and gender identity in their education programs and activities. The Department has also concluded for the reasons described in this Notice that, to the extent other interpretations may exist, this is the best interpretation of the statute.”
The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4th Circuit Court of Appeals in the Gavin Grimm case, concerning a transgender boy who was denied access to restroom facilities at a Virginia high school. The school board in that case filed a petition seeking Supreme Court review on February 24, which would present the Supreme Court with a ready vehicle to weigh in on this issue if it wants to do so.
Reversing the position taken by the Education Department during the Trump Administration, the Notice announces that the Department will investigate sexual orientation and gender identity discrimination allegations by students. “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,” wrote Goldberg. She pointed out that a determination whether Title IX was violated will depend on the facts of individual cases, and of course Title IX applies only to schools that receive federal funds.
In a footnote, Goldberg pointed out that “educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” citing 20 U.S.C. section 1681(a)(3). There is a pending federal lawsuit against the Education Department by a group of students from such religious schools claiming that this section violates the 1st Amendment Establishment Clause. Religious schools have moved to intervene as parties in that lawsuit, claiming that the government may not sufficiently defend their exemption. The Justice Department has opposed their motion in a recent court filing, asserting that the government will “vigorously” defend the challenged provision. The religious exemption was a politically necessary compromise to get Title IX adopted by Congress.
While the June 16 Notice states that its interpretation of Title IX “supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation or gender identity,” it goes on to say that this “interpretation does not reinstate any previously rescinded guidance documents.” This comment is significant, because during the Obama Administration the Education Department issued guidance documents on Title IX compliance requirements that took positions on many of the controversial issues that have been subject to litigation. Those guidance requirements were cited by school boards and administrators in defending actions they took, even after the guidances were formally rescinded by the Education Department shortly after Betsy DeVos was confirmed as Secretary of Education. DeVos took the position, later bolstered by a memorandum by Attorney General Jeff Sessions in October 2017, that Title IX did not cover sexual orientation or gender identity discrimination.
Miguel Cardona, Biden’s Secretary of Education, told The New York Times in an interview published on June 16 that “Students cannot be discriminated against because of their sexual orientation or their gender identity,” but left unclear the question whether his Department would be challenging state laws that ban transgender girls from competing in school sports. He stated, “We need to make sure we are supporting all students in our schools,” but he did not get specific about particular challenged policies. Making clear that “all” really means “all,” the Notice says that the Department’s Office of Civil Rights “carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.”
The U.S. Court of Appeals for the 9th Circuit recently heard arguments in the State of Idaho’s appeal from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls. If this issue ends up in the Supreme Court, the Biden Administration will have to take a position one way or the other, just as it will be pressed to take a position if the Court grants the petition by the Gloucester County School Board in the Gavin Grimm case. A federal court in Connecticut recently dismissed a lawsuit by a group of cisgender female high school athletes challenging a state policy of allowing transgender girls to compete, finding that the plaintiffs lacked standing to bring the issue to the court.
The Education Department’s interpretation of Title IX is not binding on the federal courts, but is entitled to some degree of deference under principles of administrative law. After DeVos and Sessions “rescinded” the Obama Administration’s interpretation and guidance documents, many federal courts continued to rule in favor of transgender students and school administrators who had adopted policies allowing transgender students to use restroom facilities. The lower federal courts have been united up to now in rejecting claims by parents and students that allowing transgender students to use restroom and locker room facilities violates the constitutional privacy rights of non-LGBTQ students, and the Supreme Court has so far refrained from hearing those cases.
As President Biden has boasted about how many LGBTQ people he has appointed, it is worth noting that both the Justice Department Civil Rights Division March 26 Memo and the June 16 DOE Notice were authored by out lesbian appointees, Pamela Karlan and Suzanne Goldberg.