[Federal Register Volume 87, Number 67 (Thursday, April 7, 2022)]
[Rules and Regulations]
[Pages 20321-20322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07290]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38


Notification of Interpretation of Section 188 of the Workforce 
Innovation and Opportunity Act

AGENCY: Office of the Secretary, Labor.

ACTION: Notification of interpretation.

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SUMMARY: This Notification is to inform the public that, consistent 
with the Supreme Court's 2020 decision in Bostock v. Clayton County and 
Title IX of the Education Amendments of 1972, the U.S. Department of 
Labor (DOL), beginning April 7, 2022, will interpret the prohibition on 
discrimination on the basis of sex that is codified in Section 188 of 
the Workforce Innovation and Opportunity Act to include discrimination 
on the basis of sexual orientation. DOL will continue to interpret and 
enforce Section 188's prohibition on discrimination on the basis of sex 
to include discrimination on the basis of gender identity and 
transgender status. This interpretation will guide DOL's Civil Rights 
Center in processing complaints and conducting investigations and 
compliance reviews, but does not determine the outcome in any 
particular case or set of facts.

DATES: This notification is effective April 7, 2022.

FOR FURTHER INFORMATION CONTACT: Naomi Barry-Perez, Director, Civil 
Rights Center, U.S. Department of Labor, 200 Constitution Ave. NW, Room 
N-4123, Washington, DC 20210.

SUPPLEMENTARY INFORMATION: DOL is informing the public that, consistent 
with the Supreme Court's decision in Bostock v. Clayton County, 140 S. 
Ct. 1731 (2020), and Title IX of the Education Amendments of 1972, 20 
U.S.C. 1681 et seq., DOL, beginning April 7, 2022, will interpret the 
prohibition on discrimination on the basis of sex in Section 188 of the 
Workforce Innovation and Opportunity Act (WIOA), 29 U.S.C. 3248, to 
include discrimination on the basis of sexual orientation.\1\ DOL will 
continue to interpret and enforce Section 188's prohibition on 
discrimination on the basis of sex to include discrimination on the 
basis of gender identity and transgender status, as set forth in the 
regulations issued under Section 188.29 CFR 38.7.
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    \1\ The regulations implementing WIOA Section 188 (29 CFR part 
38) use the phrases ``on the basis of . . . sex'' and ``based on 
sex.'' The relevant statutory language (at 29 U.S.C. 3248(a)(2)) 
uses the phrase ``because of . . . sex.'' These phrases are used 
interchangeably in this notification.
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    The Civil Rights Center (CRC) at DOL is responsible for enforcing 
Section 188 of WIOA and regulations issued under Section 188, which 
prohibit exclusion of an individual from participation in, denial of 
the benefits of, discrimination in, or denial of employment in the 
administration of or in connection with, any programs and activities 
funded or otherwise financially assisted in whole or in part under 
Title I of WIOA on various bases, including sex. 29 U.S.C. 3248(a).
    On June 15, 2020, the U.S. Supreme Court held that the prohibition 
on employment discrimination based on sex in Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e et seq., encompasses discrimination 
based on sexual orientation, gender identity, and transgender status. 
The Court concluded that the plain meaning of ``because of

[[Page 20322]]

sex'' in Title VII necessarily includes discrimination because of 
sexual orientation, gender identity, and transgender status. Bostock v. 
Clayton County, 140 S. Ct. 1731, 1753-54 (2020).
    Since Bostock, at least one Federal circuit court of appeal has 
concluded that the plain language of Title IX's prohibition on sex 
discrimination must be read similarly, and the Supreme Court has denied 
review of that decision. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 
586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), petition for 
cert. denied, No. 20-1163 (June 28, 2021).
    On March 26, 2021, the Civil Rights Division of the U.S. Department 
of Justice, the agency charged with coordination of the implementation 
and enforcement of Title IX by executive agencies, issued a memorandum 
concluding 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.'' \2\ The Civil 
Rights Division reached this conclusion after considering the text of 
Title IX, Bostock and other Supreme Court case law, including 
dissenting opinions, and developing jurisprudence in this area, 
including the circuit court opinion cited above. The Civil Rights 
Division subsequently updated its Title IX Legal Manual to state that 
the Department of Justice interprets Title IX to prohibit 
discrimination based on gender identity and sexual orientation.\3\
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    \2\ Memorandum from Principal Deputy Assistant Attorney General 
Pamela S. Karlan, Civil Rights Division, U.S. Department of Justice, 
to Federal Agency Civil Rights Directors and General Counsels, 
Application of Bostock v. Clayton County to Title IX of the 
Education Amendments of 1972 (Mar. 26, 2021), available at https://www.justice.gov/crt/page/file/1383026/download.
    \3\ Civil Rights Division, U.S. Department of Justice, Title IX 
Legal Manual, Title IX Cover Addendum post-Bostock, available at 
https://www.justice.gov/file/1423496/download.
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    In addition, on June 22, 2021, the Office for Civil Rights of the 
U.S. Department of Education, the agency responsible for that 
Department's enforcement of Title IX, published a notice in the Federal 
Register clarifying that it will enforce Title IX's prohibition on 
discrimination based on sex to include discrimination based on both 
sexual orientation and gender identity.\4\ The Office for Civil Rights 
concluded that the Supreme Court's interpretation of sex discrimination 
in Bostock properly applies to Title IX based on the textual similarity 
between Title VII and Title IX; subsequent case law including the Grimm 
decision cited above, as well as cases recognizing the harm that 
students may endure as a result of differential treatment based on 
gender identity or sexual orientation; \5\ and the Civil Rights 
Division's memorandum discussed above.
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    \4\ U.S. Department of Education, 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, Notice of Interpretation, 86 FR 32637 (June 22, 
2021).
    \5\ 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); 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 v. Univ. 
of Scranton, No. 3:19-CV-01486, 2020 WL 5993766, at *1-3 (M.D. Pa. 
Oct. 9, 2020) (describing harassment and physical targeting of a gay 
college student that interfered with the student's educational 
opportunity); 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'').
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    Section 188 of WIOA expressly incorporates Title IX's prohibition 
on sex discrimination. 29 U.S.C. 3248(a)(2) (specifying that ``[n]o 
individual shall be excluded from participation in, denied the benefits 
of, subjected to discrimination under, or denied employment in the 
administration of or in connection with, any such program or activity 
[funded or otherwise financially assisted in whole or in part under 
Title I of WIOA] because of . . . sex (except as otherwise permitted 
under title IX of the Education Amendments of 1972 . . .)''); see also 
id. 3248(a)(1) (providing that ``programs and activities funded or 
otherwise financially assisted in whole or in part under [WIOA] are 
considered to be programs and activities receiving Federal financial 
assistance'' for the purpose of applying the prohibition against 
discrimination on the basis of sex under Title IX).
    Consistent with the Supreme Court's interpretation of Title VII in 
Bostock and with the case law and interpretations discussed above 
applying the same conclusion to Title IX, beginning April 7, 2022, CRC 
interprets Section 188's prohibition on discrimination on the basis of 
sex to include discrimination on the basis of sexual orientation, as 
well as gender identity and transgender status. This interpretation 
will guide CRC in processing complaints and conducting investigations 
and compliance reviews, but it does not determine the outcome in any 
particular case, which will depend on the specific facts and 
circumstances. Any action taken by CRC in a specific case will take 
account of all relevant facts and legal requirements, including, where 
applicable, Title IX's religious exemption and other exemptions, which 
are incorporated into Section 188, see 29 U.S.C. 3248(a)(2), and the 
Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq.
    If you think that you have, or any specific class of individuals 
has, been subjected to discrimination under a WIOA Title I-financially 
assisted program or activity, you may file a complaint within 180 days 
from the date of the alleged violation with either: (1) The recipient's 
Equal Opportunity Officer (or the person whom the recipient has 
designated for this purpose) or (2) CRC, via postal mail addressed to 
The Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 
Constitution Avenue NW, Room N-4123, Washington, DC 20210, or 
electronically as directed on the CRC website at https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/external/how-to-file-complaint. The complaint will be processed in accordance with the 
procedures at 29 CFR 38.69-.85. After investigating the complaint, if 
the Director of CRC finds reasonable cause to believe that the 
recipient has violated WIOA Section 188 or its implementing 
regulations, the Director is required to issue an Initial Determination 
that includes the opportunity for the recipient to engage in voluntary 
compliance negotiations. 29 CFR 38.87(e).

Martin J. Walsh,
Secretary, Department of Labor.
[FR Doc. 2022-07290 Filed 4-6-22; 8:45 am]
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