The Department of Education issued on June 16, 2021, a Notice of Interpretation concluding that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. Accordingly, the Department will now “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
In the Notice, the Department analyzes and then adopts the reasoning from the U.S. Supreme Court decision of Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). Bostock held that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status. The Bostock Court expressly stated it was not deciding whether its ruling applied to Title IX. In taking up that question, the Department concluded Title VII and Title IX were textually similar (e.g., Title VII’s “because of” sex is similar to Title IX’s “on the basis of” sex), that both protected individuals against discrimination, and that neither statute contains an express exclusion of sexual orientation or gender identity. As such, the Department concluded Bostock’s holding extends to Title IX.