August 7, 2022

Volume XII, Number 219

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August 05, 2022

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August 04, 2022

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U.S. Department of Education Says Title IX Protects LGBTQ Students

Yesterday, the Office of Civil Rights (OCR) for the U.S. Department of Education released a new Notice of Interpretation clarifying the Department’s position that Title IX prohibits discrimination against gay and transgender students. The interpretation, applicable to both colleges and universities and K-12 institutions which accept federal funding, follows the U.S. Supreme Court’s holding in Bostock v. Clayton County that Title VII prohibits workplace discrimination based on sexual orientation or gender identity. OCR’s announcement is a departure from the previous administration’s position, which declined to extend Title IX’s protections to transgender students. While the Notice does not have the effect of law, it signals OCR’s intentions as it enforces Title IX going forward. “We just want to double down on our expectations,” said DOE Secretary Miguel A. Cardona. “Students cannot be discriminated against because of their sexual orientation or their gender identity.” 

OCR’s Notice states that its interpretation is meant to align Title VII and Title IX, acknowledging that courts regularly rely on interpretations of Title VII to inform decisions based on Title IX. The interpretation also follows a March 2021 memorandum from the U.S. Department of Justice, which similarly interpreted the Bostock decision to apply to Title IX. OCR’s announcement has been welcomed by many schools, which had been forced to juggle conflicting Title IX and Title VII standards in the wake of the Bostock decision. Still others have questioned the interpretation’s impact, including schools in locations where the interpretation is in conflict with state or local law. And OCR’s Notice expressly acknowledges that the interpretation does not change the Title IX exemption for education institutions controlled by a religious organization to the extent that the law is not consistent with the organization’s religious tenets.

OCR’s announcement comes during the summer months—as many schools are updating their policies and procedures—and while many institutions anxiously await OCR’s announcement of further guidance and regulations related to Title IX, particularly regarding further guidance regarding the 2020 Title IX regulations. The interpretation also leaves open several key questions including, for example, its impact on single sex institutions or campus affinity groups or how broadly the department will define gender identity. But as schools prepare for the 2021 fall semester, administrators should be ready to address allegations of discrimination based on sexual orientation or gender identity as part of Title IX compliance efforts. 

OCR’s Notice of Interpretation may be found in its entirety here.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 169
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About this Author

Benita N. Jones Education and Student Issues Attorney North Carolina
Of Counsel

A member of the firm’s Education and School Law Team, Benita Jones has extensive experience providing legal support and counsel to educational institutions on a broad array of state and federal legal issues including Title IX, VII, Americans with Disabilities Act, constitutional law, contract law, tort law, policy development and governance, employment law, and student legal issues. She has worked collaboratively on litigation matters with the North Carolina Attorney General’s Office and attorneys from the UNC System Office. 

Immediately prior...

919.484.2349
Beth Tyner Jones Partner Womble Bond Dickinson (US) LLP
Partner

Beth is a leader of the firm’s Education and School Law Team, head of its Employment and Pensions Service Team and Managing Partner of the Research Triangle Park and Raleigh, NC offices. She builds upon her experience as an HR professional, in-house employment lawyer and a college faculty member to defend employers and serve as a trusted adviser to educational institutions.

As outside general counsel to colleges and universities, Beth advises on compliance, policy and liability matters affecting campuses including student unrest on campus,...

919-755-8177
Rebecca Fleishman, Womble Carlyle Law Firm, Raleigh, Education and Employment Attorney
Associate

Rebecca Fleishman practices in the areas of education and employment law, representing and advising institutions of higher education, public charter schools, and corporations in litigation and day-to-day compliance. She counsels clients in employment, student, and policy matters and draws on her experience as a federal judicial clerk and staff attorney to guide and advocate for clients through all stages of litigation.

Prior to joining Womble Carlyle, Rebecca represented public school systems in student and employment matters...

919-755-2176
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