Title IX’s Prohibition of Discrimination “on the Basis of Sex” Prohibits Discrimination on Basis of Gender Identity or Sexual Orientation

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In an anticipated (but not surprising) memorandum, the U.S. Department of Justice, Civil Rights Division, has issued guidance (here) to federal agencies on the applicability of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) to Title IX. Here is an excerpt from the memo:

Title IX’s “on the basis of sex” language is sufficiently similar to “because of” sex under Title VII as to be considered interchangeable. In Bostock itself, the Supreme Court described Title VII’s language that way: “[I]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.” Bostock, 140 S. Ct. at 1737 (emphasis added)….The Bostock Court concluded that Title VII’s prohibition of discrimination “because of” sex includes discrimination because of sexual orientation and transgender status, finding that when an employer discriminates against employees for being gay or transgender, “the employer must intentionally discriminate against individual men and women in part because of sex.” Bostock, 140 S. Ct. at 1740–43. The same reasoning supports the interpretation that Title IX’s prohibition of discrimination “on the basis of” sex would prohibit recipients from discriminating against an individual based on that person’s sexual orientation or transgender status. This interpretation of Title IX is consistent with the Supreme Court’s longstanding directive that “if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982) (citations and internal alterations omitted). 

President Biden’s Executive Order 13988 articulates the Administration’s policy that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” This Title IX memo is consistent with that policy.

H/T Emily Gold Waldman.

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This entry was posted in Feminism and Law, Feminism and Sports, Primary and Secondary Education, Sex and Sexuality. Bookmark the permalink.

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