Ministry of Education interprets Title IX to protect LGBTQ + students – Consumer Protection
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Ministry of Education interprets Title IX to protect LGBTQ + students – Consumer Protection

United States: Department of Education interprets Title IX to protect LGBTQ + students

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The Ministry of Education published on June 16, 2021, a Interpretation notice concluding that Title IX prohibits discrimination based on sexual orientation and gender identity. As a result, the ministry will now “fully apply Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial support from the ministry.”

In the Opinion, the Department analyzes and then adopts the reasoning of the United States Supreme Court’s decision of Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). Bostock ruled that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation and gender identity, including transgender status. the Bostock The Court expressly stated that it was not deciding whether its decision applied to Title IX. In addressing this issue, the department concluded that Titles VII and IX were textually similar (for example, Title VII “because of” sex is similar to Title IX “on the basis of” sex), which both protected individuals against discrimination, and that neither law contains an express exclusion of sexual orientation or gender identity. Thus, the Ministry concluded Bostockthe holding of extends up to Title IX.

The Ministry is not the only one to expand Bostock in Title IX. Several federal courts have ruled on the same, and the Civil Rights Division of the United States Department of Justice recently issued a memorandum concluding in the same way. And the ministry is following President Biden’s decree of Jan. 20, 2021 requiring all agencies to review and, if necessary, change all policies to protect against discrimination on the basis of sexual orientation or gender identity.

However, the ministry is now breaking with the internal memorandum of January 8, 2021 from the Office of the Advocate General of the Ministry of Education, which concluded that Title IX did not extend to sexual orientation and identity of kind. The previous memorandum was issued under the Trump administration, and its viability has been in doubt since President Biden’s executive order.

The notice has been sent to the Federal Registry office for printing and, when published, will become an official directive.

Institutions should review policies

Institutions at all levels of education should review their policies, practices and procedures to ensure compliance with these new guidelines. For example, it will be important to ensure that non-discrimination statements are updated to include sexual orientation and gender identity. Additionally, activities or policies that have traditionally treated students differently on the basis of gender identity need to be scrutinized. These include dress codes, housing policies, and extracurricular activities, among others.

The stage is set for a confrontation with federalism

The department has now set the stage for a confrontation between the federal application of Title IX and a growing number of state laws that require academic institutions to limit participation in sports on the basis of biological sex.

Schools of all levels and statuses (eg, private, public, non-profit, for-profit), as well as sports agencies, must carefully navigate the growing schism between federal and state law. And the consequences of a misstep could be dire – violating Title IX puts schools at risk of fines, litigation, and / or potential loss of federal funds (or costly and time-consuming responses to departmental investigations) , while violation of these state laws can expose schools to private lawsuits by students (including compensatory damages and attorney fees) as well as enforcement action from state agencies.

As always, please contact Ed Cramp, Bryce Young or the attorney Duane Morris LLP you know for further advice on this matter.

Warning: This alert has been prepared and posted for informational purposes only and is not offered, nor should it be construed as legal advice. For more information, please consult the full warning.

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