KingSpry | US DOE Says Bostock Limited to Title VII

US DOE Says Title IX Does Not Protect Sexual Orientation, Says Bostock Limited to Title VII

Posted on January 13th, 2021
by Jessica F. Moyer

On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County Ga., 140 S.Ct. 1731 (2020), considered whether an employer who fires someone simply for being homosexual or transgender is engaging in sex discrimination under Title VII of the Civil Rights Act of 1964.

Title VII protects employees within the workplace from discrimination based on their sex. The Supreme Court held Title VII’s includes discrimination on the basis of sexual orientation or gender identity.

On January 8, 2021, the U.S. Department of Education’s Office of General Counsel issued a memorandum addressing the Court’s decision in Bostock. The Department’s memorandum sets forth the following:

Schools receiving federal funds from the Department of Education must comply with Title IX, specifically the rules and regulations prohibiting discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. The Court in Bostock interpreted Title VII and specifically refused to extend their holding to Title IX and other differently drafted statutes.

In their guidance, the Department specifically reiterates their lack of authority to enforce Title VII. Title IX, which the Department does have the power to enforce, has a very different text from Title VII. However, both Title IX and Title VII use the term ‘sex’, which is where Bostock may have an impact. The ruling in Bostock does not affect school’s implementation of Title IX’s regulations surrounding sex discrimination.

Bostock requires the Department to interpret statues in accordance with the ‘ordinary public meaning’ of terms at the time of their enactment. The Department’s longstanding construction of the term ‘sex’ in Title IX has been ‘biological sex, male or female’, and is consistent with the ordinary public meaning of ‘sex’ when Title IX was first enacted.

The Department guidance highlighted that based on controlling authorities, schools must give the ordinary public meaning at the time of enactment and interpret the term ‘sex’ in Title IX to continue to mean ‘biological sex, male or female.’

Courts around the country, including Pennsylvania, are in contrast with this interpretation, and Title IX has been successfully used to conclude that discrimination or harassment of a person’s transgender or gender non-conforming status is illegal sex discrimination.

Further, notwithstanding the Department’s memo, courts have found that when you treat transgender students differently than cisgender students, you are violating the Equal Protection Clause.

In AH v. Minersville School District, a recent case out of the middle district, there were allegations that a transgender student and her mother were victims of discrimination and retaliation. The school prohibited the student from using the girls’ bathroom at school or at school-sponsored events. The court upheld A.H’s claim that her rights under Title IX and Equal Protection Clause were violated.

In Joel Doe v. Boyertown School District, a cisgender student sued the school district alleging sexual harassment and violation of personal privacy because the school allowed a transgender boy to use the same locker room. Boyertown Area High School has had a long-standing policy respecting gender identity of transgender students. The plaintiff alleged the school district did not provide notice to them and other students that a transgender student was going to be using the respective locker room.

The U.S. District Court denied a preliminary injunction, and the U.S. Court of Appeals for the 3rd Circuit unanimously decided in favor of the district, upholding Boyertown’s transgender-inclusive bathroom policy. The 3rd Circuit reasoned further and explained that Boyertown’s trans-affirming policy is required by Title IX.

In addition, the PA Human Relations Commission has issued their interpretation of the term “sex” and indicated they will investigate claims of sex discrimination based upon an individual being transgender or gender identity in general. Many cities and townships have local anti-discrimination ordinances interpreting the term “sex” to include gender identity and sexual orientation.

Bottom Line for Schools

Whether or not the U.S. DOE has the correct interpretation of Bostock, it is important to stay the course and handle each student and their circumstances on a case-by-case basis. The Department’s memo does not negate the recent case law holding that schools can be sued on the basis of gender orientation under the Equal Protection Clause, investigated by the PHRC, sued under a city or township ordinance, or even their own district polices.

If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.