This blog is the second in EdCounsel’s series on Title IX and transgender issues and will cover recent developments in this area.
On June 16th, the U.S. Department of Education issued a Notice of Interpretation announcing it will interpret Title IX’s prohibition of discrimination on the basis of sex to include sexual orientation and gender identity.
This interpretation stems from last year’s U.S. Supreme Court decision, Bostock v. Clayton County and President Biden’s Executive Orders addressing discrimination. In the Bostock case, the Court interpreted the prohibition of discrimination because of sex under Title VII to include sexual orientation and gender identity. The language in Title VII is similar language to Title IX and historically, federal courts have used the Supreme Court’s interpretation of Title VII in Title IX cases. This interpretation also aligns with the recent announcements other federal agencies, such as the Department of Justice and the Department of Housing and Urban Development.
Based on this Notice of Interpretation, the Department of Education will use this approach in the processing of complaints and conducting investigations through its Office for Civil Rights, which is the mechanism in which the Department exercises its authority to enforce the Title IX requirements. This interpretation means that complaints alleging discrimination based on sexual orientation or gender identity will be received and processed the same as other claims of discrimination. This will include claims related to the use of locker rooms or bathrooms in schools.
Although this interpretation is different from the interpretation under the Trump administration, it does align with the interpretation under the Obama administration. However, the legal landscape is slightly different since we not only have the Department’s interpretation, but we also have the Bostock decision from the highest court interpreting similar language to Title IX, which provides further clarity on where this area of the law is likely headed.
At this point, this area of the law remains unchanged at the state level. Missouri Courts have previously decided that “sex” under the Missouri Human Rights Act did not extend to gender identity or sexual orientation. However, more recent decisions have prohibited discrimination based on sex-stereotyping (i.e. discrimination against someone for not conforming to stereotypical gender norms). With the Bostock decision and recent sex stereotyping decisions, it seems likely that Bostock’s analysis will be adopted by Missouri Courts. For example, in R.M.A. v. Blue Springs, the Missouri Supreme Court found that a student made a viable MHRA public accommodations claim because he sufficiently alleged a school district denied him access to the boys’ restroom and locker rooms at his school and because “sex” contributed to the denial of the restroom and locker room. This case is currently set for trial so it will take time before this case provides further clarity in the law.
The June 16th Notice of Interpretation constitutes an additional step taken by the Department of Education that provides additional insight on how courts will likely view these claims moving forward and additional guidance for school districts to consider when making decisions. We will continue to monitor for developments and provide updates.
If your district has any questions about these issues, please feel free to contact one of the team members at EdCounsel. You can also listen to our podcast on this topic available below.