Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance, which includes school districts and county offices of education. OCR issued the memo to clarify how it will enforce Title IX moving forward. The memo stated that though OCR has long recognized that Title IX protects all students, including LGBTQ students, from harassment and other forms of sex discrimination, OCR has at times in the past stated that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity.
The memo stems from the recent U.S. Supreme Court decision in Bostock v. Clayton County (2020) 140 S. Ct. 1731, in which the Court concluded that under Title VII of the Civil Rights Act of 1964, discrimination based on sexual orientation and discrimination based on gender identity inherently involve treating individuals differently because of their sex.
OCR states in its memo that it interprets Title IX’s prohibition on discrimination “on the basis of sex” to encompass discrimination on the basis of sexual orientation and gender identity, consistent with the Supreme Court’s ruling and analysis in Bostock. Courts often rely on interpretations of Title VII to inform interpretations of Title IX, and numerous federal courts have already relied on Bostock to recognize that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.
While OCR’s clarification is significant for enforcing Title IX’s prohibition on discrimination on the basis of sex nationwide, California school districts and county offices of education are unlikely to see substantial changes to their existing procedures because California law already prohibits discrimination of students based on gender, gender identity and gender expression, and specifically prohibits discrimination on the basis of gender in enrollment, counseling, physical education and athletics.
Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.