The U.S. Department of Education Office of the General Counsel released a memo on January 8, 2021, regarding the effect of the Supreme Court’s decision in Bostock v. Clayton County (2020) 140 S. Ct. 1731, with respect to Title IX.
Title IX prohibits sex discrimination in education programs or activities receiving Federal financial assistance. The memo stated Bostock compelled the Department to interpret Title IX in accord with the ordinary public meaning of its terms at the time of its enactment. Accordingly, the term “sex” in Title IX meant biological sex, male or female, which was the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment. In other words, Title IX’s prohibition against sex discrimination did not confer protections based on transgender status or sexual orientation.
The Department further stated that if it received a complaint that alleged discrimination based on a person’s transgender status or homosexuality, it must consider whether the complaint involved the person’s biological sex, which is necessary to trigger Title IX protections. Accordingly, the Department expressed that it would not find a recipient in violation of Title IX if it recorded a student’s biological sex in school records, referred to a student using sex-based pronouns that correspond to the student’s biological sex, or refused to permit a student to participate in a program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality.
The memo additionally stated the Department interpreted Title IX to require a recipient to provide separate athletic teams to separate participants solely based only on their biological sex, male or female, and not based on transgender status or homosexuality. It further interpreted Title IX to require recipients to provide separate toilets, locker rooms, and shower facilities only based on biological sex.
Read the memo here.
NOTE:
It is likely that the incoming Biden Administration will act quickly to change the Department’s interpretation of how Title IX applies to LGBTQ students.