The U.S. Department of Education recently released a memorandum stating that the historic Bostock v. Clayton County decision, handed down by the United States Supreme Court last June, does not prevent discrimination based on sexual orientation or gender identity in schools.
Title VII of the Civil Rights Act of 1964 bars discrimination “because of sex” in the workplace and Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex” in schools. In Bostock, the Supreme Court opined that “homosexuality and transgender status are inextricably bound up with sex to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex,” holding that Title VII bars discrimination based on sexual orientation and gender identity.
In its memorandum, the Department of Education stated that it “construe[s] the term ‘sex’ in Title IX to mean biological sex, male or female.” The Department went on to explain locker rooms and bathrooms in schools must be segregated by biological sex, or sex assigned at birth, and mandates that schools are required to “regulate access” to these facilities “based on biological sex.”Lastly, the memo states Title IX allows and in fact requires sports teams and their facilities to be segregated by sex assigned at birth.
CWLC has significant expertise in the application of Title IX and we therefore remain committed to combatting all gender discrimination on school campuses, including discrimination based on sexual orientation and gender identity. CWLC strongly condemns the reasoning outlined in the Department of Education’s memorandum and we remain hopeful the incoming administration will withdraw it immediately.