U.S. Dept. of Ed. Says Title IX Protects Students from Sexual Orientation and Gender Identity Discrimination

Jun 21, 2021

by Jenna Lakamp

On June 16, 2021, the United States Department of Education (the “Department”) issued a Notice of Interpretation (the “Notice”) confirming that Title IX’s prohibition of sex-based discrimination includes discrimination based on students’ sexual orientation and gender identity.  This interpretation of Title IX stems from the Supreme Court decision, Bostock v. Clayton County, 590 U.S. __ , 140 S. Ct. 1731; 207 L. Ed. 2d 218; 2020 WL 3146686; 2020 U.S. LEXIS 3252 (2020), which was issued on June 15, 2020.  The Court held in Bostock that discrimination based on a person’s sexual orientation or gender identity is necessarily discrimination on the basis of sex under Title VII of the Civil Rights Act of 1946.

In the Notice of Interpretation, the Department stated that the Office for Civil Rights (“OCR”) has long recognized that Title IX extends protection to all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of discrimination based on sex.   OCR states in the Notice that it intends to clarify its position that Title IX specifically prohibits discrimination based on sexual orientation and gender identity, in light of the Supreme Court’s decision in Bostock.  Several other federal agencies, including the Department of Housing and Urban Development, the Justice Department, and the Department of Health and Human Services, have issued similar guidance confirming that transgender Americans are protected from discrimination based on their gender, citing Bostock.

In a press conference regarding the Notice, U.S. Secretary of Education Miguel Cardona said, “The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections. I’m proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination.”  He elaborated that the Notice, “makes clear that all students – including LGBTQ+ students – deserve the opportunity to learn and thrive in schools that are free from discrimination.”

While this clarification from the Department is more expressly supportive for transgender students than we saw from the previous administration, most public school districts are already operating under the interpretation that Title IX protects LGBTQ+ students from sex based discrimination at school. The Notice does not change anything about the current Title IX Regulations, but only clarifies what is considered to be sex discrimination.

If you have any specific questions about how the new Notice of Interpretation affects your school district, please feel free to reach out to one of Tueth Keeney’s educations attorneys for more information.

Jenna M. Lakamp practices primarily in the areas of labor & employment, litigation, and education law, representing both private and public institutions in education and employment matters. Jenna is licensed in Missouri and Illinois and regularly litigates in both jurisdictions. Prior to joining the firm, Jenna practiced civil litigation at a large defense firm in St. Louis where she gained experience in discovery, motion practice, and client interaction. Jenna attended law school at Washington University in St. Louis, where she was active in The National Moot Court Team. Jenna also clerked with a successful litigation firm during law school.

The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law and higher education groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri, and has one of the largest school law practices in Central and Southern Illinois. The Firm also represents numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s education and higher education groups provide a full range of services to school districts, colleges, and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.