On June 16, 2021, the Department of Education (“Department”) issued guidance on the application of Title IX’s protections to students based on their sexual orientation and gender identity. The Department’s guidance can be found here. It states that Title IX prohibits discrimination against students because of their sexual orientation and their gender identity. 

Title IX prohibits educational institutions receiving federal funding from discriminating against students on the basis of sex in any education program or activity they offer. Because Title IX applies to any institution receiving federal funding, it applies in nearly all educational settings.  Title IX does contain a religious exemption that may permit institutions controlled by religious organizations to treat students differently based on their sex (including their sexual orientation and gender identity). This exemption applies only to the extent the application of Title IX is inconsistent with the organization’s religious tenets.  However, institutions should be aware this exemption is currently being challenged as unconstitutional in court.

The Department’s guidance on Title IX stems primarily from the United States Supreme Court’s decision in Bostock v. Clayton County, where the Supreme Court held Title VII of the Civil Rights Act, which applies in the employment context and prohibits discrimination “because of” sex, extends workplace protections to employees based on their sexual orientation and their gender identity. (See Michael Best’s prior client alert on the decision here.) The Supreme Court concluded that discriminating against an employee because of their sexual orientation or their gender identity inherently involves treating the employee differently because of their sex—a clear violation of Title VII. 

Given the similar language in Title VII and Title IX, and that courts have previously relied on interpretations of Title VII when determining the parameters of Title IX, the Department   concluded that the Supreme Court’s ruling in Bostock provides similar protections to students based on their sexual orientation and gender identity in educational settings. The Department also cited a number of recent federal court decisions that have relied on the Bostock decision to conclude that Title IX’s prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity. The Department further reasoned that its interpretation is consistent with Title IX’s purpose of ensuring equal opportunity and protecting individuals from sex discrimination.  The Department was careful to note, though, that while its “interpretation will guide the Department in processing complaints and conducting investigations, it does not determine the outcome in any particular case or set of facts.”

The Office of Civil Rights (“OCR”), which handles Title IX complaints, is charged with fully enforcing the Department’s guidance. The Department confirmed that it will investigate complaints alleging discrimination because of an individual’s sexual orientation or gender identity including “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.”

Educational institutions receiving federal funding should ensure their policies and practices align with the Department’s interpretation of Title IX. We encourage you to reach out to one of the authors listed below or your Michael Best attorney with any questions or inquiries for additional guidance regarding the above.