[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Rules and Regulations]
[Pages 32637-32640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13058]


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DEPARTMENT OF EDUCATION

34 CFR Chapter I


Enforcement of Title IX of the Education Amendments of 1972 With 
Respect to Discrimination Based on Sexual Orientation and Gender 
Identity in Light of Bostock v. Clayton County

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Interpretation.

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SUMMARY: The U.S. Department of Education (Department) issues this 
interpretation to clarify the Department's enforcement authority over 
discrimination based on sexual orientation and discrimination based on 
gender identity under Title IX of the Education Amendments of 1972 in 
light of the Supreme Court's decision in Bostock v. Clayton County. 
This interpretation will guide the Department in processing complaints 
and conducting investigations, but it does not itself determine the 
outcome in any particular case or set of facts.

DATES: This interpretation is effective June 22, 2021.

FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, Director, Program 
Legal Group, Office for Civil Rights. Telephone: (202) 245-7272. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Background: Title IX of the Education Amendments of 1972, 20 U.S.C. 
1681-1688, prohibits discrimination on the basis of sex in any 
education program or activity offered by a recipient of Federal 
financial assistance. The Department's Office for Civil Rights (OCR) is 
responsible for the Department's enforcement of Title IX.
    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. OCR also has 
long recognized that Title IX prohibits harassment and other forms of 
discrimination against all students for not conforming to stereotypical 
notions of masculinity and femininity. But OCR at times has stated that 
Title IX's prohibition on sex discrimination does not encompass 
discrimination based on sexual orientation and gender identity. To 
ensure clarity, the Department issues this Interpretation addressing 
Title IX's coverage of discrimination based on sexual orientation and 
gender identity in light of the Supreme Court decision discussed below.
    In 2020, the Supreme Court in Bostock v. Clayton County, 140 S. Ct. 
1731, 590 U.S. __ (2020), concluded that discrimination based on sexual 
orientation and discrimination based on gender identity inherently 
involve treating individuals differently because of their sex. It 
reached this conclusion in the context of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. 2000e et seq., which prohibits sex 
discrimination in employment. As noted below, courts rely on 
interpretations of Title VII to inform interpretations of Title IX.
    The Department issues this Interpretation to make clear that the 
Department interprets Title IX's prohibition on sex discrimination to 
encompass discrimination based on sexual orientation and gender 
identity and to provide the reasons for this interpretation, as set out 
below.
    Interpretation:
    Title IX Prohibits Discrimination Based on Sexual Orientation and 
Gender Identity.
    Consistent with the Supreme Court's ruling and analysis in Bostock, 
the Department interprets Title IX's prohibition on discrimination ``on 
the basis of sex'' to encompass discrimination on the basis of sexual 
orientation and gender identity. As was the case for the Court's Title 
VII analysis in Bostock, this interpretation flows from the statute's 
``plain terms.'' See Bostock, 140 S. Ct. at 1743, 1748-50. Addressing 
discrimination based on sexual orientation and gender identity thus 
fits squarely within OCR's responsibility to enforce Title IX's 
prohibition on sex discrimination.

I. The Supreme Court's Ruling in Bostock

    The Supreme Court in Bostock held that sex discrimination, as 
prohibited by Title VII, encompasses discrimination based on sexual 
orientation and gender identity. The Court explained that to 
discriminate on the basis of sexual orientation or gender identity 
``requires an employer to intentionally treat individual employees 
differently because of their sex.'' 140 S. Ct. at 1742.\1\ As the Court 
also explained,

[[Page 32638]]

when an employer discriminates against a person for being gay or 
transgender, the employer necessarily discriminates against that person 
for ``traits or actions it would not have questioned in members of a 
different sex.'' Id. at 1737.
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    \1\ The Court recognized that the parties in Bostock each 
presented a definition of ``sex'' dating back to Title VII's 
enactment, with the employers' definition referring to 
``reproductive biology'' and the employees' definition ``capturing 
more than anatomy[.]'' 140 S. Ct. at 1739. The Court did not adopt a 
definition, instead ``assum[ing]'' the definition of sex provided by 
the employers that the employees had accepted ``for argument's 
sake.'' Id. As the Court made clear, it did not need to adopt either 
definition to conclude that discrimination ``because of . . . sex'' 
encompasses discrimination based on sexual orientation and gender 
identity. Id. (``[N]othing in our approach to these cases turns on 
the outcome of the parties' debate . . . .''). Similar to the 
Court's interpretation of Title VII, the Department's interpretation 
of the scope of discrimination ``on the basis of sex'' under Title 
IX does not require the Department to take a position on the 
definition of sex, nor do we do so here.
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    The Court provided numerous examples to illustrate why ``it is 
impossible to discriminate against a person'' because of their sexual 
orientation or gender identity ``without discriminating against that 
individual based on sex.'' Id. at 1741. In one example, when addressing 
discrimination based on sexual orientation, the Court stated:

    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 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. Put differently, the employer 
intentionally singles out an employee to fire based in part on the 
employee's sex, and the affected employee's sex is a but-for cause 
of his discharge.

Id.
    In another example, the Court showed why singling out a transgender 
employee for different treatment from a non-transgender (i.e., 
cisgender) employee is discrimination based on sex:

[T]ake an employer who fires a transgender person who was identified 
as a male at birth but who now identifies as a female. If the 
employer retains an otherwise identical employee who was identified 
as female at birth, the employer intentionally penalizes a person 
identified as male at birth for traits or actions that it tolerates 
in an employee identified as female at birth. Again, the individual 
employee's sex plays an unmistakable and impermissible role in the 
discharge decision.

Id. at 1741-42.

II. Bostock's Application to Title IX

    For the reasons set out below, the Department has determined that 
the interpretation of sex discrimination set out by the Supreme Court 
in Bostock--that discrimination ``because of . . . sex'' encompasses 
discrimination based on sexual orientation and gender identity--
properly guides the Department's interpretation of discrimination ``on 
the basis of sex'' under Title IX and leads to the conclusion that 
Title IX prohibits discrimination based on sexual orientation and 
gender identity.
    a. There is textual similarity between Title VII and Title IX.
    Like Title VII, Title IX prohibits discrimination based on sex.
    Title IX provides, with certain exceptions: ``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 . . . .'' 20 U.S.C. 1681(a).
    Title VII provides, with certain exceptions: ``It shall be an 
unlawful employment practice for an employer (1) to fail or refuse to 
hire or to discharge any individual, or otherwise to discriminate 
against any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of such individual's . 
. . sex[ ] . . .; or (2) to limit, segregate, or classify his employees 
or applicants for employment in any way which would deprive or tend to 
deprive any individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of such 
individual's . . . sex[ ] . . . .'' 42 U.S.C. 2000e-2(a). (Title VII 
also prohibits discrimination based on race, color, religion, and 
national origin.)
    Both statutes prohibit sex discrimination, with Title IX using the 
phrase ``on the basis of sex'' and Title VII using the phrase ``because 
of'' sex. The Supreme Court has used these two phrases interchangeably. 
In Bostock, for example, the Court described Title VII in this way: 
``[I]n Title VII, Congress outlawed discrimination in the workplace on 
the basis of race, color, religion, sex, or national origin.'' 140 S. 
Ct. at 1737 (emphasis added); id. at 1742 (``[I]ntentional 
discrimination based on sex violates Title VII . . . .'' (emphasis 
added)); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 
(2005) (``[W]hen a funding recipient retaliates against a person 
because he complains of sex discrimination, this constitutes 
intentional `discrimination' `on the basis of sex,' in violation of 
Title IX.'' (second emphasis added)); Meritor Sav. Bank v. Vinson, 477 
U.S. 57, 64 (1986) (``[W]hen a supervisor sexually harasses a 
subordinate because of the subordinate's sex, that supervisor 
`discriminate[s]' on the basis of sex.'' (emphasis added)).
    In addition, both statutes specifically protect individuals against 
discrimination. In Bostock, 140 S. Ct. at 1740-41, the Court observed 
that Title VII ``tells us three times--including immediately after the 
words `discriminate against'--that our focus should be on 
individuals.'' The Court made a similar observation about Title IX, 
which uses the term person, in Cannon v. University of Chicago, 441 
U.S. 677, 704 (1979), stating that ``Congress wanted to avoid the use 
of federal resources to support discriminatory practices [and] to 
provide individual citizens effective protection against those 
practices.'' Id. (emphasis added).
    Further, the text of both statutes contains no exception for sex 
discrimination that is associated with an individual's sexual 
orientation or gender identity. As the Court stated in Bostock, ``when 
Congress chooses not to include any exceptions to a broad rule, courts 
apply the broad rule.'' 140 S. Ct. at 1747. The Court has made a 
similar point regarding Title IX: ``[I]f we are to give Title IX the 
scope that its origins dictate, we must accord it a sweep as broad as 
its language.'' N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982) 
(citations and internal alterations omitted). It also bears noting 
that, in interpreting the scope of Title IX's prohibition on sex 
discrimination the Supreme Court and lower Federal courts have often 
relied on the Supreme Court's interpretations of Title VII. See, e.g., 
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992); Jennings 
v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Frazier v. 
Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002); Gossett v. 
Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 
(10th Cir. 2001).
    Moreover, the Court in Bostock found that ``no ambiguity exists 
about how Title VII's terms apply to the facts before [it]''--i.e., 
allegations of discrimination in employment against several individuals 
based on sexual orientation or gender identity. 140 S. Ct. at 1749. 
After reviewing the text of Title IX and Federal courts' interpretation 
of Title IX, the Department has concluded that the same clarity exists 
for Title IX. That is, Title IX prohibits recipients of Federal 
financial assistance from discriminating based on sexual orientation 
and gender identity in their education programs and activities. The 
Department also has concluded for the reasons described in this 
document that, to the extent other interpretations may exist, this is 
the best interpretation of the statute.
    In short, the Department finds no persuasive or well-founded basis 
for declining to apply Bostock's reasoning--discrimination ``because of

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. . . sex'' under Title VII encompasses discrimination based on sexual 
orientation and gender identity--to Title IX's parallel prohibition on 
sex discrimination in federally funded education programs and 
activities.
    b. Additional case law recognizes that the reasoning of Bostock 
applies to Title IX and that differential treatment of students based 
on gender identity or sexual orientation may cause harm.
    Numerous Federal courts have relied on Bostock to recognize that 
Title IX's prohibition on sex discrimination encompasses discrimination 
based on sexual orientation and gender identity. See, e.g., Grimm v. 
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as 
amended (Aug. 28, 2020), reh'g en banc denied, 976 F.3d 399 (4th Cir. 
2020), petition for cert filed, No. 20-1163 (Feb. 24, 2021); Adams v. 
Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), 
petition for reh'g en banc pending, No. 18-13592 (Aug. 28, 2020); 
Koenke v. Saint Joseph's Univ., No. CV 19-4731, 2021 WL 75778, at *2 
(E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-01486, 
2020 WL 5993766, at *11 n.61 (M.D. Pa. Oct. 9, 2020).
    The Department also concludes that the interpretation set forth in 
this document is most consistent with the purpose of Title IX, which is 
to ensure equal opportunity and to protect individuals from the harms 
of sex discrimination. As numerous courts have recognized, a school's 
policy or actions that treat gay, lesbian, or transgender students 
differently from other students may cause harm. See, e.g., Grimm, 972 
F.3d at 617-18 (describing injuries to a transgender boy's physical and 
emotional health as a result of denial of equal treatment); Adams, 968 
F.3d at 1306-07 (describing ``emotional damage, stigmatization and 
shame'' experienced by a transgender boy as a result of being subjected 
to differential treatment); Whitaker ex rel. Whitaker v. Kenosha 
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044-46, 1049-50 
(7th Cir. 2017) (describing physical and emotional harm to a 
transgender boy who was denied equal treatment); Dodds v. U.S. Dep't of 
Educ., 845 F.3d 217, 221-22 (6th Cir. 2016) (describing ``substantial 
and immediate adverse effects on the daily life and well-being of an 
eleven-year-old'' transgender girl from denial of equal treatment); 
Doe, 2020 WL 5993766, at **1-3 (describing harassment and physical 
targeting of a gay college student that interfered with the student's 
educational opportunity); Harrington ex rel. Harrington v. City of 
Attleboro, No. 15-CV-12769-DJC, 2018 WL 475000, at **6-7 (D. Mass. Jan. 
17, 2018) (describing `` `wide-spread peer harassment' and physical 
assault [of a lesbian high school student] because of stereotyping 
animus focused on [the student's] sex, appearance, and perceived or 
actual sexual orientation'').
    c. The U.S. Department of Justice's Civil Rights Division has 
concluded that Bostock's analysis applies to Title IX.
    The U.S. Department of Justice's Civil Rights Division issued a 
Memorandum from Principal Deputy Assistant Attorney General for Civil 
Rights Pamela S. Karlan to Federal Agency Civil Rights Directors and 
General Counsels regarding Application of Bostock v. Clayton County to 
Title IX of the Education Amendments of 1972 (Mar. 26, 2021), https://www.justice.gov/crt/page/file/1383026/download.
    The memorandum stated that, after careful consideration, including 
a review of case law, ``the Division has determined that the best 
reading of Title IX's prohibition on discrimination `on the basis of 
sex' is that it includes discrimination on the basis of gender identity 
and sexual orientation.'' Indeed, ``the Division ultimately found 
nothing persuasive in the statutory text, legislative history, or 
caselaw to justify a departure from Bostock's textual analysis and the 
Supreme Court's longstanding directive to interpret Title IX's text 
broadly.''

III. Implementing This Interpretation

    Consistent with the analysis above, OCR will fully enforce Title IX 
to prohibit discrimination based on sexual orientation and gender 
identity in education programs and activities that receive Federal 
financial assistance from the Department. As with all other Title IX 
complaints that OCR receives, any complaint alleging discrimination 
based on sexual orientation or gender identity also must meet 
jurisdictional requirements as defined in Title IX and the Department's 
Title IX regulations, other applicable legal requirements, as well as 
the standards set forth in OCR's Case Processing Manual, www.ed.gov/ocr/docs/ocrcpm.pdf.\2\
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    \2\ Educational institutions that are controlled by a religious 
organization are exempt from Title IX to the extent that compliance 
would not be consistent with the organization's religious tenets. 
See 20 U.S.C. 1681(a)(3).
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    Where a complaint meets applicable requirements and standards as 
just described, OCR will open an investigation of allegations that an 
individual has been discriminated against because of their sexual 
orientation or gender identity in education programs or activities. 
This includes 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, denied the 
benefits of such programs or activities, or otherwise treated 
differently because of their sexual orientation or gender identity. OCR 
carefully reviews 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.
    While this interpretation will guide the Department in processing 
complaints and conducting investigations, it does not determine the 
outcome in any particular case or set of facts. Where OCR's 
investigation reveals that one or more individuals has been 
discriminated against because of their sexual orientation or gender 
identity, the resolution of such a complaint will address the specific 
compliance concerns or violations identified in the course of the 
investigation.
    This interpretation supersedes and replaces any prior inconsistent 
statements made by the Department regarding the scope of Title IX's 
jurisdiction over discrimination based on sexual orientation and gender 
identity. This interpretation does not reinstate any previously 
rescinded guidance documents.
    Accessible Format: On request to the contact person listed under 
FOR FURTHER INFORMATION CONTACT, individuals with disabilities can 
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format.
    Electronic Access to This Document: The official version of this 
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    You may also access documents of the Department published in the 
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your search to documents published by the Department.

Suzanne B. Goldberg,
Acting Assistant Secretary for Civil Rights.
[FR Doc. 2021-13058 Filed 6-21-21; 8:45 am]
BILLING CODE 4000-01-P