Extending Bostock: Sexual Orientation and Transgender Protections under Title IX

On June 15, 2020, the United States Supreme Court ruled that Title VII prohibits discrimination in employment on the basis of sexual orientation or transgender status. We previously outlined in detail the reasoning adopted by the Supreme Court in that case. See United States Supreme Court Holds Title VII Applies to Homosexual and Transgender Employees.

Three justices, however, dissented from that ruling. In their joint dissent, Justices Samuel Alito and Clarence Thomas accused the majority of being “irresponsible” in allegedly refusing to consider the consequences of its reasoning and, in their view, improperly engaging in law-making that should be reserved for Congress. In doing so, Justices Alito and Thomas lamented the potential extension of the majority’s reasoning beyond Title VII to other federal laws, like Title IX.

Like Title VII, Title IX prohibits sex discrimination, but does so in the context of any elementary or secondary school and any college or university that receives federal financial assistance. According to Justice Alito and Thomas, extending the majority’s reasoning to Title IX would be problematic. For example, they argued, “[t]he effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.” Justices Alito and Thomas also outlined other perceived issues or complications involved in extending the majority’s reasoning to other statutes like Title IX.

Justices Alito and Thomas concluded their dissent by stating, among other things, “we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.” If the dissent got anything right, it is that many individuals and litigants will likely (and justifiably) seek to extend the reasoning of Bostock to other federal statutes like Title IX.

That trend has already taken shape under the Trump Administration and now the Biden Administration. On January 20, 2021, the Biden Administration issued an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order states, in relevant part, “Under Bostock’s reasoning, laws that prohibit sex discrimination—including Title IX…[]—prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

This Executive Order, however, does not have the force or effect of law. Notably, it conflicts with a prior memorandum that was recently issued during the Trump Administration by the Office for Civil Rights of the United States Department of Education. This January 8, 2021 memorandum stated Bostock did not change the meaning of “sex” under Title IX because the Supreme Court did not decide that issue. According to this memorandum, “sex” under Title IX means “biological sex.”

Despite this prior memorandum, the Executive Order provides a better guide to how the Department of Education will interpret and enforce Title IX during the Biden Administration. Nonetheless, it remains to be seen if and how federal courts may approach the issue of whether these other laws—like Title IX—“contain sufficient indications” to suggest “sex discrimination” does not include discrimination on the basis of sexual orientation or transgender status.

The current trend in federal courts does not suggest Bostock’s reasoning will be limited to Title VII. Based on recent cases across the country (including but not limited to decisions from the Fourth and Eleventh Circuits), it appears that most courts will extend the reasoning of Bostock to Title IX claims; however, until the Supreme Court hears and decides that issue, litigants should expect that the issue will continue to be disputed in cases across the country. Stay tuned for further developments in this area.