Newly Proposed Title IX Regulatory Amendments Explicitly Clarify that Title IX Prohibits Discrimination on the Basis of Sexual Orientation and Gender Identity

07.18.2022

On the 50th Anniversary of Title IX of the Education Amendments of 1972 (“Title IX”), which was celebrated on June 23, 2022, the United States Department of Education (“U.S. DOE”) issued proposed amendments to the Title IX regulations (hereinafter, “Proposed Amendments”).  Among other significant proposed regulatory changes, the Proposed Amendments explicitly clarify for the first time that Title IX’s prohibition of discrimination on the basis of sex includes a prohibition of discrimination on the basis of an individual’s sexual orientation and gender identity, in addition to sex characteristics and sex stereotypes.  On July 12, 2022, the Notice of Proposed Rulemaking was officially published in the Federal Register, and the U.S. DOE invited public comment on the Proposed Amendments until September 12, 2022.  The formal adoption of the Proposed Amendments is not anticipated for several months after public comment. 

It is important to underscore that certain federal courts and Presidential Administrations have already interpreted Title IX as prohibiting discrimination on the basis of sexual orientation and gender identity.  Additionally, it is already well-settled that California law protects students and employees from being discriminated against on the basis of sexual orientation and gender identity. The Proposed Amendments do not affect these established state civil rights laws.  Accordingly, educational institutions’ obligations under such state laws remain the same.

Title IX requires educational institutions to protect against discrimination on the basis of sex. Title IX specifically provides:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Title IX’s implementing regulations (hereinafter, the “Title IX Regulations”) provide additional guidance to educational institutions on how to comply with the federal statute’s prohibition against sex discrimination in the areas of athletics, facilities, and sexual harassment prevention, among other areas.[1]  The U.S. DOE’s Office for Civil Rights (“OCR”) and the Civil Rights Division of the U.S. Department of Justice (“CRD”) enforce Title IX and its implementing regulations .  Although the plain text of the Title IX Regulations has never directly addressed how Title IX applies to discrimination based on sexual orientation or gender identity, OCR and CRD under different Presidential Administrations have issued various guidance documents that reflect differing opinions and interpretations on whether Title IX applies to claims of discrimination based on sexual orientation and gender identity.

As a consequence of changing Presidential Administrations with differing views, the federal government’s interpretation of whether Title IX’s protection against sex-based discrimination, which also includes protection against sexual orientation and gender identity discrimination has changed over the years.

During the Obama Administration, OCR and CRD released several guidance documents, including “Dear Colleague Letters,” which made clear that Title IX required educational institutions to protect against discrimination based on sexual orientation and gender identity.  For example, OCR and CRD issued a “Dear Colleague Letter” on May 13, 2016, stating that Title IX required educational institutions to grant access to facilities and allow participation in education programs based on an individual’s gender identity, and their failure to do so would be a violation of Title IX.[2]  Through this guidance letter, OCR and CRD clarified that the federal government, at that time, interpreted Title IX to prohibit discrimination on the basis of gender identity, including transgender status.

Thereafter, on February 22, 2017, OCR under the Trump Administration rescinded its prior guidance interpreting Title IX’s protections as including a prohibition against discrimination based on gender identity discrimination.  Instead, OCR under the Trump Administration questioned the Obama Administration’s “novel” interpretation that Title IX protected individuals on the basis of gender identity.  In rescinding the prior guidance, OCR under the Trump Administration further noted that “due regard” should be given to the “primary role of States and local districts in establishing educational policy” on these issues. [3]

Most recently, and immediately upon assuming the Office of the Presidency on January 20, 2021, President Biden and his Administration issued an Executive Order entitled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”[4]  This Executive Order stated that the Biden Administration held the view that federal laws protecting against sex discrimination, including Title IX, prohibited discrimination on the basis of sexual orientation and gender identity, and the Title IX Regulations would be revised to explicitly clarify these protections.  Several months later, the U.S. DOE issued a “Notice of Interpretation,” in which the U.S. DOE indicated it would interpret Title IX to prohibit discrimination based on sexual orientation and gender identity.[5]  In support of its position, the Biden Administration cited to the 2020 Supreme Court decision, Bostock v. Clayton County, in which the Supreme Court held that the federal protection against sex discrimination in the workplace under Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits  sexual orientation and gender identity discrimination.[6]  Based on the Supreme Court’s analysis and holding under Title VII’s protections, the Biden Administration concluded that Title IX’s protection against sex discrimination also required the same protections against discrimination based on sexual orientation and gender identity.

The Proposed Amendments accomplish this objective in three ways.  First, the Proposed Amendments explicitly clarify that sex discrimination includes discrimination based on sexual orientation and gender identity.[7]  Currently, the Title IX Regulations do not specifically define “sex discrimination” and, therefore, this legal term, as noted above, has been interpreted differently by OCR and CRD during different Presidential Administrations.  Second, the Proposed Amendments state that sex-based harassment includes harassment based on sexual orientation and gender identity.[8]  Again, the current Title IX Regulations generally prohibit sexual harassment, but do not specify that this protection includes harassment based on sexual orientation and gender identity.  Third, the Proposed Amendments explicitly state that preventing a person from participating in an educational program or activity consistent with the person’s gender identity constitutes sex discrimination.[9]  This proposed regulatory language does not address a student’s participation in athletics; however, the Biden Administration announced on June 23, 2022 that the U.S. DOE “plans to issue a separate notice of rulemaking to address whether and how the [U.S. DOE] should amend Title IX Regulations to address students’ eligibility to participate on a particular male or female athletic team.”[10]  It is unclear when the U.S. DOE will start rulemaking on this particular issue.

Although the Proposed Amendments identify significant changes to Title IX’s Regulations, it is important to keep a of couple issues in mind.  First, the Proposed Amendments have yet to be finalized or formally adopted.  The U.S. DOE issued the Proposed Amendments and has invited public comment as part of the standard rule-making process.  After the public comment period ends on September 12, 2022, the U.S. DOE will move forward with finalizing and adopting the Title IX Regulations, with any modifications, which will then be adopted as final Title IX Regulations and have the force of federal law.  Although there is no absolute end date for rulemaking process, many hold the view that the Proposed Amendments will affect an educational institution’s obligations under Title IX no sooner than the 2023/2024 Academic Year.

Until the Proposed Amendments are formally adopted and have the full force of law, educational institutions must continue to comply with the current Title IX Regulations, which became effective in August 2020 during the Trump Administration.  Additionally, as explained above, state law already establishes that California educational institutions must prohibit discrimination on the basis of sexual orientation and gender identity.  For example, Section 220 of the California Education Code provides that no person should be discriminated against on the basis of gender identity, gender expression, sexual orientation, and other protected characteristics.  Section 221.5 of the California Education Code also requires elementary and secondary schools to allow access to facilities and participation in programs based on gender identity.[11]  Additionally, Section 66270 of the California Education Code prohibits discrimination based on sexual orientation and gender identity in any program or activity conducted by any postsecondary education institution that receives state funding.[12]  Thus, California’s educational institutions are already required under state laws to adopt and adhere to policies and take other affirmative efforts to protect against sexual orientation and gender identity discrimination.  These obligations under state laws are separate from the obligations and responsibilities under the Title IX Regulations.  Depending on the precise, adopted language of the final Title IX Regulations, California’s educational institutions may need to revise and update their policies and procedures to address complaints based on sex discrimination, including sexual harassment, to ensure compliance with both Title IX and California laws.

AALRR will continue to issue Alerts and Blogs to address different components of the Proposed Amendments and how they might affect your educational institution.  In the meantime, educational institutions should continue to ensure compliance with current Title IX Regulations and other federal and state laws to prevent discrimination based on sex, including sexual orientation and gender identity.  If you have any questions, please contact one of the attorneys of AALRR’s Title IX Team.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2022 Atkinson, Andelson, Loya, Ruud & Romo

[1] Code of Federal Regulations, Title 34, Section 106.30 et seq. (“34 CFR 106.30”).

[2] Dear Colleague Letter on Transgender Students, OCR, U.S. Department of Education, and Civil Rights Division, U.S. Department of Justice (May 13, 2016): “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”  https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[3] Dear Colleague Letter on Transgender Students, OCR, U.S. Department of Education, and CRD, U.S. Department of Justice, dated February 22,  2017, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.

[4] Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

[5] Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972, http://1y48qjz4w5awm6pc3j1gi512-wpengine.netdna-ssl.com/wp-content/uploads/sites/4/2021/06/202106-titleix-notice-of-interpretation.pdf.

[6] Bostock v. Clayton County, 140 S. Ct. 1731 (2020)

[7] Proposed Amendments, 34 CFR 106.10.

[8] Proposed Amendments, 34 CFR 106.2 defining “sex-based harassment” as sexual harassment, harassment on the bases described in newly proposed § 106.10.

[9] Proposed Amendments, 34 CFR 106.31(a)(2) “Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.” 

[10] FACT SHEET: U.S. Department of Education’s 2022 Proposed Amendments to its Title IX Regulations, OCR, U.S. Department of Education, https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-factsheet.pdf.

[11] California Education Code section 221.5(f) “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records.”

[12] California Education Code section 66270: “No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code, including immigration status, in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.”

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