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January 27, 2021

Executive Order and Courts Clarify Supreme Court Bostock Decision Applies to Title IX, Too

On January 20, 2021, President Joe Biden signed the "Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The Executive Order explicitly extends the holding of Bostock v. Clayton County1 — namely, that Title VII’s prohibition on discrimination “because of . . . sex” includes discrimination based on gender identity and sexual orientation — to all federal laws prohibiting sex discrimination, including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and Section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522). Because Title VII is limited to employment discrimination, it was unclear how the Supreme Court’s decision would be applied to other federal discrimination statutes that prohibit sex discrimination in other contexts. The Biden administration has now stated its view that Bostock applies with equal force.

The Executive Order is a quick reversal of a January 8, 2021, memorandum by the U.S. Department of Education’s Office for Civil Rights (OCR), which asserted that Bostock did not affect the meaning of “sex” as the term is used in Title IX. The OCR memo relied on the fact that Bostock specifically refused to extend its holding to Title IX, although this was unsurprising because Title VII was the only statute at issue in the Bostock decision and the Supreme Court generally issues rulings limited to the law before it. Further, OCR’s memo argued that sex means only biological sex.

While the Executive Order clarifies OCR’s policy and how OCR will apply Title IX for at least the next four years, it does not have the power to clarify or direct court rulings. That can lead to confusion and consternation, particularly when court decisions contradict OCR’s policies. Fortunately, recent federal district and appellate court decisions appear to be taking an approach that is consistent with the Executive Order and have held, based on the reasoning in Bostock, that Title IX’s prohibition against sex discrimination prohibits gender identity and sexual orientation discrimination in educational programs and activities, too.

For example, in late August 2020, after Bostock was decided, the U.S. Court of Appeals for the Fourth Circuit in Grimm v. Gloucester County School Board joined “a growing consensus of courts” in holding that Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender identity.2 The court explained that although Bostock interpreted Title VII, it guided the court’s evaluation of claims under Title IX. Thus, after Bostock, the court had little difficulty in holding that a bathroom policy precluding a student from using the boys’ restrooms discriminated against him “on the basis of sex.” This decision followed closely on the heels of an early August 2020 Eleventh Circuit decision in Adams v. School Board of St. Johns County, which applied Bostock’s holding to a Title IX case that similarly involved a school’s bathroom policy for a transgender student.3

Most recently, just days before President Biden signed the Executive Order, a federal district court for the Eastern District of Pennsylvania held in Koenke v. St. Joseph’s University, that following Bostock, a defendant’s argument that sexual orientation is not a protected class under Title IX was “without merit.”4 Perhaps forecasting what may be a coming tide of decisions in this direction, the court spent just one paragraph discussing Bostock and its application to Title IX. It concluded simply that because Title VII’s ban on sex discrimination prohibits sexual orientation discrimination, and because Title VII uses identical language to Title IX, Title IX’s prohibition on sex discrimination also constitutes a prohibition on sexual orientation discrimination.5

The takeaway: The Department of Education will now interpret and enforce Title IX as covering LGBTQ students. Although courts are not bound by the Executive Order in deciding how to interpret and apply Bostock to Title IX, most courts have so far interpreted the meaning of “sex” as, consistent with Bostock, prohibiting discrimination on the basis of sexual orientation and gender identity. Educational institutions should review their nondiscrimination polices to ensure they prohibit discrimination based on these protected classes.

  1. 140 S. Ct. 1731 (2020).
  2. -- F.3d --, 2020 WL 5034430, at *21 (4th Cir. Aug. 26, 2020).
  3. Adams v. Sch. Bd. of St. John’s Cty., 968 F.3d 1286, 13014-1305 (11th Cir. 2020).
  4. Koenke v. Saint Joseph’s Univ., 2021 WL 75778, at *2 (E.D. Pa. Jan. 8, 2021). See also Doe v. Univ. of Scranton, 2020 U.S. Dist. LEXIS 187526, at *11 n.61 (M.D. Pa. Oct. 9, 2020) (applying Bostock to a Title IX claim in the absence of express Third Circuit precedent to the contrary).
  5. In addition to the cases discussed herein, other courts have easily applied Bostock to the Title IX context. See, e.g., Clark Cty. Sch. Dist. v. Bryan, -- P.3d --, 2020 WL 7686545, at *4 (Nev. Dec. 24, 2020); Burks v. Bd. of Trustees of Fla. Agricultural & Mechanical Univ., -- F. Supp. 3d --, 2020 WL 7137108, at *3 (N.D. Fla. Dec. 4, 2020).

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