On June 16, 2020, we reported on the Department of Education’s Office of Civil Rights (“OCR”) Letter of Impending Enforcement Action against a State Athletic Association for allowing transgender girls to compete on girls’ track teams. According to OCR, this practice violated Title IX by discriminating against biological girls. Subsequently, the United States Supreme Court, in the landmark decision, Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, (June 15, 2020) (“Bostock”), held that LGBTQ discrimination in the workplace is unlawful sex discrimination in violation of Title VII. On August 31, 2020, OCR issued two separate letters, both of which addressed its interpretation of Title IX in light of the high court’s Bostock decision.
In the first letter, which revised its Letter of Impending Enforcement, OCR explained that it would continue to proceed with bringing the Connecticut Athletic Conference and District into compliance with Title IX. In this “formal statement of OCR’s interpretation of Title IX”, OCR stated that “the Bostock holding does not alter the legal authority for single-sex athletic teams under Title IX because Title IX and its implementing regulations permit certain distinctions based on sex….” OCR conceded that Title VII and Title IX did share some similarities. (Title VII applies to discrimination in the workplace, and Title IX limits its scope to discrimination in all educational institutions, both public and private, which receive federal funds). However, OCR noted that “unlike Title VII, one of Title IX’s crucial purposes is protecting women’s and girls’ athletic opportunities.” Furthermore, OCR found that “separate-sex teams have long ensured that female student athletes are afforded an equal opportunity to participate.” Title IX’s regulations “authorize single-sex teams because physiological differences are relevant.” When a recipient [of federal funds] provides “separate teams for members of each sex, under 34 C.F.R. §106.41(b), the recipient must separate those teams on the basis of biological sex, and not on the basis of homosexual or transgender status.”
In its second letter, OCR issued a notice of investigation of a student’s complaint that a Tennessee school discriminated against her based on her sexual orientation; the student asserts she is a lesbian. OCR again expressly addressed the Bostock decision when it stated, “Title IX does not mention discrimination on the basis of a student’s sexual orientation. However, the U.S. Supreme Court recently held that discrimination on the basis of an individual’s status as a homosexual constitutes sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964.” OCR specifically stated that the Supreme Court has long recognized “significant differences between workplaces and schools”, and that the Bostock decision does not control the Department’s interpretation of Title IX. However, OCR noted that Bostock does guide OCR’s “understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.” OCR concluded that it would open up an investigation of whether there was discrimination against this student on the basis of her biological sex, by reason of sexual orientation.” The fact that OCR published this letter at all was surprising, as it normally does not publish any letters regarding the opening of Title IX investigations.
While these two letters may seem contradictory, they are not. Importantly, OCR distinguishes its enforcement of Title IX regarding schools that separate students by biological sex in the context of intimate facilities and sports teams because Title IX “includes specific statutory and regulator exemptions outlining when consideration of biological sex is permitted.” These recent developments outlined above have muddied the waters in an already legally complex Title IX landscape. Resultantly, as the law on Title IX continues to develop, districts should seek legal counsel to maintain compliance when LGBQT issues arise.
You can download OCR’s two letters below: