The U.S. Department of Education leadership published guidance (the “Guidance”) on Jan. 8, 2021, taking a position that could be construed to restrict LGBT rights under Title IX and in conflict with the holdings of two federal appellate court decisions in the past six months. The Department concedes that the legal analysis in the Supreme Court’s landmark Bostock decision, which extended federal anti-discrimination protections to LGBT employees, indicates that Title IX should be interpreted to protect the LGBT community against some forms of discrimination occurring in the education sector. However, the Department appears to draw the line for those protections as extending only to discriminatory adverse employment decisions and sexual harassment on the basis of LGBT status. The Guidance contrasts those forms of prohibited discrimination with other types of disparate treatment for LGBT students that, according to the Guidance, educational institutions covered by Title IX may continue to engage in without violating Title IX.

Forms of LGBT Discrimination that Title IX Prohibits

While attempting to limit application of Bostock to Title IX, the Department acknowledges that in the following respects, prohibited sex discrimination under Title VII of the Civil Rights Act is also prohibited by Title IX:

• “Title IX prohibits termination of an employee on the basis of sex, meaning a person’s biological sex, male or female. By analogy to Bostock, terminating an employee on the basis of the employee’s homosexuality or transgender status implicates that employee’s sex and, thus, is at least in part discrimination on the basis of the employee’s biological sex.”
• Likewise, “unwelcome conduct on the basis of transgender status or homosexuality may, if so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a [covered institution’s] education program or activity on the basis of their transgender status or homosexuality, constitute sexual harassment prohibited by Title IX.”

The Guidance recognizes that Title IX generally prohibits the above-mentioned forms of LGBT discrimination, however also notes potential exceptions to these prohibitions including situations where a person’s sex is a bona fide occupational qualification, “such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned,” and certain situations involving religious institutions.

Actions That New Department Guidance Asserts are Permitted by Title IX

The Department explicitly identifies several forms of conduct that it asserts would not generally violate Title IX, including (1) the recording of a student’s biological sex in school records, (2) referring to a student using sex-based pronouns that correspond to the student’s biological sex, or (3) refusing to permit a student to participate in a program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality.

Additionally, the Guidance contends that “Title IX and its implementing regulations address other circumstances under which it is permissible to provide education programs or activities based on distinctions between the two biological sexes,” offering the following set of non-exhaustive examples:

• The admissions policies of any public institution of undergraduate higher education that traditionally and continually from its establishment has had a policy of admitting only students of one sex.
• The membership practices of certain organizations such as a social fraternity or social sorority whose members are primarily students at an institution of higher education.
• Organizations such as the Girl Scouts whose membership “has traditionally been limited to persons of one sex and principally to persons of less than nineteen years of age.”
• Separate mother-daughter and father-son activities.
• A school’s decision to provide separate housing for members of each sex.
• A recipient’s decision to provide single-sex classes, extracurricular activities, or schools subject to specific regulatory requirements on the basis of sex.
• A recipient’s decision to separate students in physical education classes involving contact sports based on each student’s sex, or to conduct separate sessions in human sexuality classes for students of each sex.

The Department has construed its own regulations to permit schools to provide separate bathrooms, locker rooms and showers “on the basis of sex,” as long as the school provides comparable facilities for “each sex.” The Department asserts that Title IX regulations actually require institutions covered by Title IX to make some decisions based on “biological sex.” Specifically, the Department contends, “Title IX’s statutory and regulatory provisions permit, and in some cases require, biological sex, male or female, to be taken into account in an education program or activity.” Furthermore, the Guidance argues that Title IX regulations require covered institutions “that provide ‘separate toilet, locker room, and shower facilities on the basis of sex’ to regulate access based on biological sex.”

The Guidance has caught the attention of some civil rights advocacy groups. The Guidance was recently criticized by the Human Rights Campaign as “misconstruing” Bostock. The Department itself notes that the Guidance conflicts with the holdings of two federal appeals courts over the last six months. Those cases—from the Fourth and Eleventh Circuits[1]—both address access to sex-designated restrooms, holding that Title IX prohibited schools from restricting transgender male students from using boys-only restrooms.

Institutions covered by Title IX should tread carefully when making decisions that implicate this evolving area of law. Armstrong Teasdale’s Higher Education practice is monitoring this topic closely and will issue additional advisories as the interplay between Title IX and Bostock develops further.