At the beginning of last week, Donald Trump was President of the United States and we were being flooded with last minute Title IX and civil rights guidance from the outgoing Department of Education. As we near the end of the week, Joseph Biden is President and we are digesting a long list of senior political appointees for the department and executive orders signaling a reversal on approaches to racial and LGBTQ equality within federal agencies. Where we are now, need to know and do, and what is expected to come? This is the first part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration and what they mean for school leaders under Title IX.
Part 1: Title IX and Gender Identity and Sexual Orientation After Bostock
Anyone keeping watch on the Department of Education’s actions in the past few weeks knows that the outgoing administration did not intend to go quietly into the night. Instead, we saw a flurry of guidance and other documents issued up to the very final moments of the administration in the realms of civil rights and Title IX. An important example was a January 8, 2021 memorandum from the Department’s Office of General Counsel stating that LGBTQ students are not covered by Title IX.
What was the action? The memorandum was from the OGC to the Office for Civil Rights, purportedly answering several questions from OCR about the effect of a recent Supreme Court decision, Bostock v. Clayton County, with respect to Title IX. We wrote about the Bostock case and its potential impacts on Title IX previously on this blog, and highly encourage you to review that post for essential background. The OGC memorandum issued on January 8 mostly reiterates the position expressed by OCR in August 2020, which we discussed in a subsequent blog post on OCR’s approach to applying the case to Title IX. Specifically, the OGC memorandum reiterates the Trump OCR position that although Bostock did not expressly decide any issues under Title IX, the Trump administration OCR would in some cases find that discrimination on the basis of gender identity or sexual orientation falls within the scope of Title IX’s non-discrimination mandate because it constitutes sex discrimination. However, because Title IX and its implementing regulations, unlike Title VII, may in some cases require consideration of a person’s biological sex, such as in assigning students to sports teams or using facilities in a school building, the Trump OCR would not consider different treatment based on gender identity or sexual orientation to be discrimination based on sex.
Does It Still Matter? No. The OGC’s directions to OCR, and OCR’s own interpretations of the impact of Bostock on Title IX, were subject to complete reversal on day one by the Biden administration.
And guess what? On day one, the Biden team did issue an order on January 20, 2021, which, although it did not address OCR or education directly, showed that the administration has a very different interpretation of Bostock and Title IX. The “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” states that under Bostock’s reasoning, laws that prohibit sex discrimination—“including Title IX”—prohibit discrimination on the basis of gender identity or sexual orientation, so long as the relevant laws do not contain sufficient indications to the contrary. This is a broad interpretation of Bostock and contradicts with that presented by the Trump administration in the OGC memorandum. Accordingly, the OGC’s 13-page thesis on the application of Bostock is basically irrelevant now.
What are the Practical Considerations for Schools? Biden’s executive order directs agencies to consider whether they need to issue new guidance. That question will be a no-brainer for the Department of Education, and so we should expect to receive new guidance soon. Even before then, schools must understand that the Biden administration’s OCR will likely begin robustly enforcing Title IX’s protections for individuals alleging discrimination, harassment, and retaliation based on gender identity or sexual orientation. Schools and districts should contact legal counsel to assess risk regarding any ongoing matters involving facilities, athletics, and other access issues for LGBTQ students.