On September 8, 2020, an Education Dive article quoted me about two recent letters from the U.S. Department of Education’s Office for Civil Rights (OCR) on the impact on Title IX of this year’s landmark U.S. Supreme Court decision on sexual orientation discrimination in employment. OCR’s position: Title IX, like Title VII, now protects against discrimination based on sexual orientation and gender identity in schools. But that does not mean that schools can grant transgender students equal access to sex-segregated facilities or sports teams, says OCR. Media reports suggest the Department’s stated approaches are “totally at odds”–but are they? Here is a summary of the letters and why they seem pretty consistent, after all.
Bowing to Bostock for LGBTQ Discrimination and Harassment Claims
The first letter, dated August 31, 2020, evidenced a new position that OCR is taking on LGBTQ complaints. The impetus for the change was the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County. In Bostock, the Court held that Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation and transgender status in the workplace.
OCR has long taken the position that Title IX does not prohibit discrimination based on sexual orientation, even under the Obama administration. (An example: OCR’s now rescinded 2010 Dear colleague Letter on bullying, which said, “Title IX does not prohibit discrimination based solely on sexual orientation.”) According to OCR, Title IX only covered complaints of discrimination, including bullying and harassment, based on failure to comply with gender norms. As we explained in the months leading up to the Bostock decision, because of similarities between Title VII and Title IX language, many wondered if OCR would change its approach under Title IX based on the case.
The August 31 letter was a “notice of investigation,” or NOI, letter. The complaint at issue alleges that a school discriminated against a student based on sexual orientation, but did not involve transgender issues. In the letter, OCR explained that although Title IX still does not reference sexual orientation, OCR was opening the door to complaints based on LGBTQ status because of the Bostock decision. “[W]ith respect to complaints that a school’s action or policy excludes a person from participation in, denies a person the benefits of, or subjects a person to discrimination under an education program or activity, on the basis of sex, the Bostock opinion guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.” Accordingly, OCR opened the complaint for investigation, addressing whether there was discrimination against the student “on the basis of her biological sex, by reason of her sexual orientation.”
OCR does not usually publish its letters opening investigations. Nor are NOIs usually signed by the Acting Assistant Secretary for Civil Rights, like this one was. Through this letter, OCR wanted the world to know that it has changed its approach on this important issue. And for many, the change in perspective is a step in the right direction.
“[W]ith respect to complaints that a school’s action or policy excludes a person from participation in, denies a person the benefits of, or subjects a person to discrimination under an education program or activity, on the basis of sex, the Bostock opinion guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.”
Blowing Off Bostock for Trans Student Access to Facilities and Teams
But the NOI issued on August 31 was not the only letter OCR issued that day. A second letter, also dated August 31, included an update to a May 2020 Letter of Impending Enforcement Action against six Connecticut school districts and the Connecticut Interscholastic Athletic Conference. In the May letter, OCR threatened to take away the school districts’ and athletic association’s federal funds for allowing “biologically male” transgender students to compete on girls’ athletic teams. The May Connecticut letter came out before the U.S. Supreme Court’s decision in Bostock.
The August letter shows that OCR does not intend to change its position concerning transgender-student access to facilities and sports teams because of Bostock. OCR dubbed the letter “a formal statement” of its “interpretation of Title IX,” so there is no doubt that it provides OCR’s official position. The letter unequivocally states that, in OCR’s estimation, Bostock does not alter the relevant legal standard for considering whether transgender students can access “sex-segregated” sports teams based on gender identity. OCR explained that the Bostock Court took pains to say it was only deciding the issue for Title VII. OCR also claimed that Title IX differs from Title VII in fundamental ways, including Title IX’s “crucial purpose” of “protecting women’s and girls’ athletic opportunities.” Accordingly, even if Bostock were to apply to Title IX, OCR would not find it to affect the “Department’s position that its regulations authorize single-sex teams” to the exclusion of transgender students.
Harmonizing the Seeming Paradox
As noted previously, many have suggested that the positions OCR took in the two August 31 letters are inconsistent or a sign of “mixed messages” on LGBTQ rights in schools. But on closer inspection, these letters suggest a crystallization of a consistent position Trump’s OCR has taken since almost day one.
OCR explains in the letters why its positions are not conflicting and the explanation makes sense. According to OCR, Bostock changed the game concerning discrimination based on one’s LGBTQ status. No longer is it required to show that a student suffered different treatment, bullying, harassment, or other bias or retaliation for not complying with gender norms. Now, it is enough to show that someone suffered such conduct based on sexual orientation or other LGBTQ status, alone.
To OCR, however, that does not mean that all discrimination against LGBTQ students is alike. As OCR explained in the August 31 NOI, it believes Bostock does not impact its “regulations or enforcement of Title IX regarding schools that separate students by biological sex in the context of intimate facilities—such as locker rooms and bathrooms—or sports teams, athletic opportunities, or other substantive areas for which Title IX includes specific statutory and regulatory exemptions outlining when consideration of biological sex is permitted.” As OCR stated in the revised Letter of Impending Enforcement Action, moreover, unlike Title VII, one of Title IX’s crucial purposes “protecting women’s and girls’ athletic opportunities.” Unlike in employment environments, where “an employee’s sex is not relevant to employment decisions,” OCR says “there are circumstances in which a person’s sex is relevant, and distinctions based on the two sexes in such circumstances are permissible because the sexes are not similarly situated.”
Don’t get me wrong, I’m not sure I’m buying what OCR is selling. This area of law is complicated and if there were a clear answer we likely would have settled on it by now. But to suggest that OCR’s approach here is inconsistent is a stretch. Rather, school leaders should see this as a solidification of OCR’s consistent approach under the current administration of rejecting Title IX protections for transgender students in the realms of facilities and athletics. Although the recognition of rights of LGBTQ individuals against discrimination in the school environment is an important one, it is not necessarily in conflict with OCR’s approach in the Connecticut case.