Justice Dept: Sexual orientation and gender identity are protected under Title IX

Dive Brief:

  • Sexual orientation and gender identity are protected classes under Title IX, the U.S. Department of Justice said in a newly released memo to federal agencies. 

  • The document, which was sent to federal civil rights directors and general counsels last month, draws on a U.S. Supreme Court case, Bostock v. Clayton County, decided in June. It found workers who are gay or transgender are shielded under Title VII, the federal employment discrimination law.

  • The directive was widely anticipated, as President Joe Biden ordered his departments on his first day in office to evaluate whether the Bostock interpretation should affect other federal laws or regulations. 

Dive Insight:

Bostock was a landmark win for LGBTQ activists, holding that gay and transgender employees are protected under Title VII of the Civil Rights Act of 1964 “because of” their sex, the law states.

This is key language, as it closely matches the wording of the Title IX statute, which prevents discrimination “on the basis of sex” in educational settings. 

Federal courts have since applied the Bostock ruling to Title IX, as the memo notes. It was written by Principal Deputy Assistant Attorney General Pamela Karlan, a Stanford University law professor who represented the plaintiffs in Bostock

The memo was expected and in line with courts using Bostock to interpret Title IX cases, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College, in Texas, who also tracks legal issues related to the sex discrimination law.

Despite these legal precedents, the Trump administration rejected that Bostock applied to LGBTQ students. An Education Department official wrote in a January memo that Title VII and Title IX were “very different” in “many important respects.”

For instance, the administration determined the term “sex” in Title IX meant “biological sex, male or female,” the official wrote, adding that Congress has yet to redefine the terms.

The new document should provide “a starting point” for “consistent and robust enforcement of Title IX,” Karlan wrote. 

Karlan noted the memo “does not prescribe any particular outcome with regard to enforcement,” writing that sexual violence allegations will be determined by the facts of a case.

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