18 June 2021

OCR Guidance Confirms Title IX Protects LGBTQ+ Students from Discrimination and Harassment

Earlier this week, the U.S. Department of Education Office of Civil Rights (OCR) released interpretive guidance confirming that Title IX, the federal law that prohibits discrimination against students and school district employees on the basis of sex in education programs or activities, also prohibits harassment and discrimination based on an individual’s sexual orientation or gender identity.

OCR’s guidance was released on the heels of the recent United States Supreme Court decision, Bostock v Clayton County, 140 S Ct 1731, 590 US __ (2020).  In Bostock, the Court concluded that discrimination based on sexual orientation or gender identity necessarily requires treating individuals differently because of their sex.  By way of example, the Court explained:

Consider, for example, an employer with two employees, both of whom are attracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman.  If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. . . . [T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Consistent with Bostock, OCR intends to “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance,” including programs and activities provided by public school districts, charter schools, and some private schools.  To that end, OCR provided a list of the following identifiers and sexual orientations included under Title IX’s definition of “sex”: “male, female, or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or . . . other[s].”

Moving forward, school districts should review their Title IX policies and administrative regulations and, if necessary, provide additional training to district employers, to ensure all claims of harassment and discrimination based on sexual orientation or gender identity are investigated and resolved in compliance with Title IX.