July 24, 2021

Volume XI, Number 205

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U.S. Department of Education Will Protect LGBTQ+ Students

It will fully enforce Title IX of the Education Amendments of 1972 to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance from it, the U.S. Department of Education has clarified in a Notice of Interpretation.

This would include allegations of individuals:

  • Being harassed;

  • Disciplined in a discriminatory manner;

  • Excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities;

  • Being denied the benefits of academic or extracurricular opportunities and other education program or activities; or

  • Otherwise being treated differently because of their sexual orientation or gender identity

The Department’s Office for Civil Rights (OCR) will carefully review allegations from anyone who files a complaint, including students who identify as male, female, or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.

Based on the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, Georgia140 S. Ct. 1731 (2020), the Department has concluded Title IX prohibits discrimination based on sexual orientation and gender identity. In Bostock, the Court held that Title VII of the Civil Rights Act protects individuals from discrimination based on sexual orientation and gender identity. The Department noted that Title VII and Title IX use similar language to describe discrimination based on sex, protect individuals against discrimination, and contain no exception for sex discrimination that is associated with an individual’s sexual orientation or gender identity.

According to the Department, OCR has long recognized that Title IX protects all students (including students who are lesbian, gay, bisexual, and transgender) from harassment and other forms of sex discrimination, including prohibiting harassment and other forms of discrimination against all students for not conforming to stereotypical notions of masculinity and femininity.

The Department also acknowledged that OCR, at times, has stated that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity. The Department issued the Notice to clarify Title IX’s coverage of discrimination based on sexual orientation and gender identity in light of Bostock.

The Department highlighted that its Notice is part of the Biden-Harris Administration’s commitment to advance the rights of the LGBTQ+ community. See President Joe Biden’s “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” and his “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” OCR also stressed the importance of protections for the LGBTQ+ community in its June 2021 announcement of public hearings on Title IX. The Notice marks a continued shift by the Biden Administration away from the previous administration’s position that sex under Title IX is defined by a person’s biological sex.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 168
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About this Author

Susan D. Friedfel Employment law attorney for educational instituions in White Plains, NY of Jackson Lewis law firm
Principal

Susan D. Friedfel is a Principal in the White Plains and New York, New York, offices of Jackson Lewis P.C.

Ms. Friedfel collaborates with clients to find practical solutions for a variety of issues that arise in the workplace. She counsels clients in various industries, including law firms, financial institutions, educational institutions, and not-for-profit organizations, on a wide array of issues.

Susan D. Friedfel  provides advice and counsel on matters such as:

  • employee recruiting and hiring practices
  • family and medical leave
  • reasonable...
914-872-8027
Monica H. Khetarpal, Litigation Experience, Discrimination, Wage and Hour Violations, Jackson Lewis Law Firm
Principal

Monica H. Khetarpal is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. Her litigation experience includes cases involving claims for discrimination, harassment, wage and hour violations, FMLA violations, disability discrimination and requests for accommodation in both single plaintiff and class action matters. She regularly handles matters at all levels, from administrative agencies to appeals in both state and federal courts.

Ms. Khetarpal focuses a significant portion of her practice on representing higher education clients and serves as co...

312-803-2529
Carol R. Ashley Labor & Employment Attorney Jackson Lewis Washington, D.C.
Of Counsel

Carol R. Ashley is of counsel in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

703-483-8300
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