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July 6, 2021

US Department of Education Applies Bostock v. Clayton County to Title IX Enforcement

The United States Department of Education’s Office for Civil Rights (OCR) has issued an interpretation that is being scheduled for publication in the Federal Register. It will not be official until publication, but no changes are expected.

The interpretation is being issued to clarify the Department of Education’s enforcement authority over discrimination based on sexual orientation, gender identity, or both under Title IX of the Education Amendments of 1972 in light of the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020). The interpretation is intended to guide the department in processing complaints and conducting investigations.

As background information, the interpretation states that the OCR has long recognized Title IX’s protection of all students, including those who identify as lesbian, gay, bisexual, and transgender, from harassment and other forms of sex discrimination. However, the OCR has at times indicated that Title IX’s prohibition against sex discrimination does not include discrimination based on sexual orientation and gender identity—an unexplained contradiction.

The interpretation points out that, while Bostock is a case of employment discrimination under Title VII, courts rely on Title VII analyses to interpret Title IX. The interpretation goes on to use Title VII to interpret Title IX.

Bostock held that discrimination in employment “because of sex” includes discrimination on the basis of sexual orientation and gender identity under Title VII, using examples of two employees who like men: one is a male and the other is female. If the male is fired because of the same characteristic as the woman, he is discriminated against because of sex. It cites another example, using a transgender female and a cisgender female who both identify as female. Firing the transgender female is likewise illegal discrimination because of sex.

The department now applies the Supreme Court’s analysis to Title IX, clarifying that addressing discrimination based on sexual orientation and gender identity fits clearly within OCR’s responsibility to enforce Title IX’s prohibition on sex discrimination. In doing so, the department discusses the textual similarity between Title VII and Title IX. It explains that Title IX’s prohibition of discrimination “on the basis of sex” is equivalent to “because of sex” in Title VII, citing to cases under both statutes that use both phrases interchangeably. Both statutes apply to individuals, and neither statute includes any exceptions.

The department recognizes that numerous federal courts have applied Bostock in Title IX cases, citing to cases from the 4th and 11th Circuit Courts of Appeal and district courts in Pennsylvania and Maryland.

The department has concluded that its interpretation is consistent with the purpose of Title IX, which is to ensure equal opportunity in education and to protect individuals from the harms of sex discrimination. Going forward, the OCR will consider claims related to sexual orientation and gender identity as sex discrimination, and investigate accordingly.

If you have any questions regarding the content of this alert, please contact Penny Mason, of counsel, at, or another member of the firm’s Higher Education Practice Area.


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