On January 20, 2021, President Joe Biden signed the "Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The Executive Order explicitly extends the holding of Bostock v. Clayton County1 — namely, that Title VII’s prohibition on discrimination “because of . . . sex” includes discrimination based on gender identity and sexual orientation — to all federal laws prohibiting sex discrimination, including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and Section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522). Because Title VII is limited to employment discrimination, it was unclear how the Supreme Court’s decision would be applied to other federal discrimination statutes that prohibit sex discrimination in other contexts. The Biden administration has now stated its view that Bostock applies with equal force.
The Executive Order is a quick reversal of a January 8, 2021, memorandum by the U.S. Department of Education’s Office for Civil Rights (OCR), which asserted that Bostock did not affect the meaning of “sex” as the term is used in Title IX. The OCR memo relied on the fact that Bostock specifically refused to extend its holding to Title IX, although this was unsurprising because Title VII was the only statute at issue in the Bostock decision and the Supreme Court generally issues rulings limited to the law before it. Further, OCR’s memo argued that sex means only biological sex.
While the Executive Order clarifies OCR’s policy and how OCR will apply Title IX for at least the next four years, it does not have the power to clarify or direct court rulings. That can lead to confusion and consternation, particularly when court decisions contradict OCR’s policies. Fortunately, recent federal district and appellate court decisions appear to be taking an approach that is consistent with the Executive Order and have held, based on the reasoning in Bostock, that Title IX’s prohibition against sex discrimination prohibits gender identity and sexual orientation discrimination in educational programs and activities, too.
For example, in late August 2020, after Bostock was decided, the U.S. Court of Appeals for the Fourth Circuit in Grimm v. Gloucester County School Board joined “a growing consensus of courts” in holding that Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender identity.2 The court explained that although Bostock interpreted Title VII, it guided the court’s evaluation of claims under Title IX. Thus, after Bostock, the court had little difficulty in holding that a...
