Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 32637-32640 [2021-13058]

Download as PDF Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations requirements, Security measures, Waterways. DEPARTMENT OF EDUCATION 34 CFR Chapter I For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS Office for Civil Rights, Department of Education. ACTION: Interpretation. AGENCY: 1. The authority citation for part 165 continues to read as follows: ■ Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11–057 to read as follows: ■ § 165.T11–057 Safety Zone; Southwest Shelter Island Channel Entrance Closure, San Diego, CA. lotter on DSK11XQN23PROD with RULES1 (a) Location. The following area is a safety zone: The Northeast Shelter Island Channel Entrance and all navigable waters of San Diego Bay encompassed by by a three hundred yard circle centered on the coordinate 32°43′13.7″ N, longitude 117°13′7.8″ W. (b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Sector San Diego (COTP) in the enforcement of the safety zone. (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP’s designated representative. (2) To seek permission to enter, contact the COTP or the COTP’s representative by VHF Channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP’s designated representative. (d) Enforcement period. This section will be enforced from 8:30 a.m. until 10:30 a.m. on June 22, 2021. Dated: June 16, 2021. T.J. Barelli, Captain, U.S. Coast Guard, Captain of the Port Sector San Diego. [FR Doc. 2021–13136 Filed 6–21–21; 8:45 am] BILLING CODE 9110–04–P VerDate Sep<11>2014 18:13 Jun 21, 2021 Jkt 253001 Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County The U.S. Department of Education (Department) issues this interpretation to clarify the Department’s enforcement authority over discrimination based on sexual orientation and discrimination based on gender identity under Title IX of the Education Amendments of 1972 in light of the Supreme Court’s decision in Bostock v. Clayton County. This interpretation will guide the Department in processing complaints and conducting investigations, but it does not itself determine the outcome in any particular case or set of facts. DATES: This interpretation is effective June 22, 2021. FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, Director, Program Legal Group, Office for Civil Rights. Telephone: (202) 245–7272. Email: Alejandro.Reyes@ed.gov. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1–800–877– 8339. SUPPLEMENTARY INFORMATION: Background: Title IX of the Education Amendments of 1972, 20 U.S.C. 1681– 1688, prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of Federal financial assistance. The Department’s Office for Civil Rights (OCR) is responsible for the Department’s enforcement of Title IX. OCR has long recognized that Title IX protects all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of sex discrimination. OCR also has long recognized that Title IX prohibits harassment and other forms of discrimination against all students for not conforming to stereotypical notions of masculinity and femininity. But OCR at times has stated that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity. To ensure clarity, the Department issues this Interpretation addressing Title IX’s coverage of discrimination based on sexual orientation and gender identity SUMMARY: PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 32637 in light of the Supreme Court decision discussed below. In 2020, the Supreme Court in Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ll (2020), concluded that discrimination based on sexual orientation and discrimination based on gender identity inherently involve treating individuals differently because of their sex. It reached this conclusion in the context of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., which prohibits sex discrimination in employment. As noted below, courts rely on interpretations of Title VII to inform interpretations of Title IX. The Department issues this Interpretation to make clear that the Department interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity and to provide the reasons for this interpretation, as set out below. Interpretation: Title IX Prohibits Discrimination Based on Sexual Orientation and Gender Identity. Consistent with the Supreme Court’s ruling and analysis in Bostock, the Department interprets Title IX’s prohibition on discrimination ‘‘on the basis of sex’’ to encompass discrimination on the basis of sexual orientation and gender identity. As was the case for the Court’s Title VII analysis in Bostock, this interpretation flows from the statute’s ‘‘plain terms.’’ See Bostock, 140 S. Ct. at 1743, 1748–50. Addressing discrimination based on sexual orientation and gender identity thus fits squarely within OCR’s responsibility to enforce Title IX’s prohibition on sex discrimination. I. The Supreme Court’s Ruling in Bostock The Supreme Court in Bostock held that sex discrimination, as prohibited by Title VII, encompasses discrimination based on sexual orientation and gender identity. The Court explained that to discriminate on the basis of sexual orientation or gender identity ‘‘requires an employer to intentionally treat individual employees differently because of their sex.’’ 140 S. Ct. at 1742.1 As the Court also explained, 1 The Court recognized that the parties in Bostock each presented a definition of ‘‘sex’’ dating back to Title VII’s enactment, with the employers’ definition referring to ‘‘reproductive biology’’ and the employees’ definition ‘‘capturing more than anatomy[.]’’ 140 S. Ct. at 1739. The Court did not adopt a definition, instead ‘‘assum[ing]’’ the definition of sex provided by the employers that the employees had accepted ‘‘for argument’s sake.’’ Id. As the Court made clear, it did not need to adopt E:\FR\FM\22JNR1.SGM Continued 22JNR1 32638 Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations when an employer discriminates against a person for being gay or transgender, the employer necessarily discriminates against that person for ‘‘traits or actions it would not have questioned in members of a different sex.’’ Id. at 1737. The Court provided numerous examples to illustrate why ‘‘it is impossible to discriminate against a person’’ because of their sexual orientation or gender identity ‘‘without discriminating against that individual based on sex.’’ Id. at 1741. In one example, when addressing discrimination based on sexual orientation, the Court stated: Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Id. In another example, the Court showed why singling out a transgender employee for different treatment from a non-transgender (i.e., cisgender) employee is discrimination based on sex: [T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. Id. at 1741–42. lotter on DSK11XQN23PROD with RULES1 II. Bostock’s Application to Title IX For the reasons set out below, the Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock— that discrimination ‘‘because of . . . sex’’ encompasses discrimination based on sexual orientation and gender identity—properly guides the either definition to conclude that discrimination ‘‘because of . . . sex’’ encompasses discrimination based on sexual orientation and gender identity. Id. (‘‘[N]othing in our approach to these cases turns on the outcome of the parties’ debate . . . .’’). Similar to the Court’s interpretation of Title VII, the Department’s interpretation of the scope of discrimination ‘‘on the basis of sex’’ under Title IX does not require the Department to take a position on the definition of sex, nor do we do so here. VerDate Sep<11>2014 18:13 Jun 21, 2021 Jkt 253001 Department’s interpretation of discrimination ‘‘on the basis of sex’’ under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity. a. There is textual similarity between Title VII and Title IX. Like Title VII, Title IX prohibits discrimination based on sex. Title IX provides, with certain exceptions: ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’’ 20 U.S.C. 1681(a). Title VII provides, with certain exceptions: ‘‘It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[ ] . . .; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . sex[ ] . . . .’’ 42 U.S.C. 2000e–2(a). (Title VII also prohibits discrimination based on race, color, religion, and national origin.) Both statutes prohibit sex discrimination, with Title IX using the phrase ‘‘on the basis of sex’’ and Title VII using the phrase ‘‘because of’’ sex. The Supreme Court has used these two phrases interchangeably. In Bostock, for example, the Court described Title VII in this way: ‘‘[I]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.’’ 140 S. Ct. at 1737 (emphasis added); id. at 1742 (‘‘[I]ntentional discrimination based on sex violates Title VII . . . .’’ (emphasis added)); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (‘‘[W]hen a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.’’ (second emphasis added)); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (‘‘[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.’’ (emphasis added)). In addition, both statutes specifically protect individuals against PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 discrimination. In Bostock, 140 S. Ct. at 1740–41, the Court observed that Title VII ‘‘tells us three times—including immediately after the words ‘discriminate against’—that our focus should be on individuals.’’ The Court made a similar observation about Title IX, which uses the term person, in Cannon v. University of Chicago, 441 U.S. 677, 704 (1979), stating that ‘‘Congress wanted to avoid the use of federal resources to support discriminatory practices [and] to provide individual citizens effective protection against those practices.’’ Id. (emphasis added). Further, the text of both statutes contains no exception for sex discrimination that is associated with an individual’s sexual orientation or gender identity. As the Court stated in Bostock, ‘‘when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.’’ 140 S. Ct. at 1747. The Court has made a similar point regarding Title IX: ‘‘[I]f we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.’’ N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982) (citations and internal alterations omitted). It also bears noting that, in interpreting the scope of Title IX’s prohibition on sex discrimination the Supreme Court and lower Federal courts have often relied on the Supreme Court’s interpretations of Title VII. See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002); Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001). Moreover, the Court in Bostock found that ‘‘no ambiguity exists about how Title VII’s terms apply to the facts before [it]’’—i.e., allegations of discrimination in employment against several individuals based on sexual orientation or gender identity. 140 S. Ct. at 1749. After reviewing the text of Title IX and Federal courts’ interpretation of Title IX, the Department has concluded that the same clarity exists for Title IX. That is, Title IX prohibits recipients of Federal financial assistance from discriminating based on sexual orientation and gender identity in their education programs and activities. The Department also has concluded for the reasons described in this document that, to the extent other interpretations may exist, this is the best interpretation of the statute. In short, the Department finds no persuasive or well-founded basis for declining to apply Bostock’s reasoning—discrimination ‘‘because of E:\FR\FM\22JNR1.SGM 22JNR1 lotter on DSK11XQN23PROD with RULES1 Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations . . . sex’’ under Title VII encompasses discrimination based on sexual orientation and gender identity—to Title IX’s parallel prohibition on sex discrimination in federally funded education programs and activities. b. Additional case law recognizes that the reasoning of Bostock applies to Title IX and that differential treatment of students based on gender identity or sexual orientation may cause harm. Numerous Federal courts have relied on Bostock to recognize that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020), petition for cert filed, No. 20– 1163 (Feb. 24, 2021); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), petition for reh’g en banc pending, No. 18–13592 (Aug. 28, 2020); Koenke v. Saint Joseph’s Univ., No. CV 19–4731, 2021 WL 75778, at *2 (E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19–CV–01486, 2020 WL 5993766, at *11 n.61 (M.D. Pa. Oct. 9, 2020). The Department also concludes that the interpretation set forth in this document is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination. As numerous courts have recognized, a school’s policy or actions that treat gay, lesbian, or transgender students differently from other students may cause harm. See, e.g., Grimm, 972 F.3d at 617–18 (describing injuries to a transgender boy’s physical and emotional health as a result of denial of equal treatment); Adams, 968 F.3d at 1306–07 (describing ‘‘emotional damage, stigmatization and shame’’ experienced by a transgender boy as a result of being subjected to differential treatment); Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044–46, 1049–50 (7th Cir. 2017) (describing physical and emotional harm to a transgender boy who was denied equal treatment); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221–22 (6th Cir. 2016) (describing ‘‘substantial and immediate adverse effects on the daily life and well-being of an elevenyear-old’’ transgender girl from denial of equal treatment); Doe, 2020 WL 5993766, at **1–3 (describing harassment and physical targeting of a gay college student that interfered with the student’s educational opportunity); Harrington ex rel. Harrington v. City of Attleboro, No. 15–CV–12769–DJC, 2018 VerDate Sep<11>2014 18:13 Jun 21, 2021 Jkt 253001 WL 475000, at **6–7 (D. Mass. Jan. 17, 2018) (describing ‘‘ ‘wide-spread peer harassment’ and physical assault [of a lesbian high school student] because of stereotyping animus focused on [the student’s] sex, appearance, and perceived or actual sexual orientation’’). c. The U.S. Department of Justice’s Civil Rights Division has concluded that Bostock’s analysis applies to Title IX. The U.S. Department of Justice’s Civil Rights Division issued a Memorandum from Principal Deputy Assistant Attorney General for Civil Rights Pamela S. Karlan to Federal Agency Civil Rights Directors and General Counsels regarding Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (Mar. 26, 2021), https://www.justice.gov/ crt/page/file/1383026/download. The memorandum stated that, after careful consideration, including a review of case law, ‘‘the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.’’ Indeed, ‘‘the Division ultimately found nothing persuasive in the statutory text, legislative history, or caselaw to justify a departure from Bostock’s textual analysis and the Supreme Court’s longstanding directive to interpret Title IX’s text broadly.’’ III. Implementing This Interpretation Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department. As with all other Title IX complaints that OCR receives, any complaint alleging discrimination based on sexual orientation or gender identity also must meet jurisdictional requirements as defined in Title IX and the Department’s Title IX regulations, other applicable legal requirements, as well as the standards set forth in OCR’s Case Processing Manual, www.ed.gov/ ocr/docs/ocrcpm.pdf.2 Where a complaint meets applicable requirements and standards as just described, OCR will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities. This includes allegations of individuals being 2 Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. 1681(a)(3). PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 32639 harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity. OCR carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways. While this interpretation will guide the Department in processing complaints and conducting investigations, it does not determine the outcome in any particular case or set of facts. Where OCR’s investigation reveals that one or more individuals has been discriminated against because of their sexual orientation or gender identity, the resolution of such a complaint will address the specific compliance concerns or violations identified in the course of the investigation. This interpretation supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation and gender identity. This interpretation does not reinstate any previously rescinded guidance documents. Accessible Format: On request to the contact person listed under FOR FURTHER INFORMATION CONTACT, individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit E:\FR\FM\22JNR1.SGM 22JNR1 32640 Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations your search to documents published by the Department. Suzanne B. Goldberg, Acting Assistant Secretary for Civil Rights. [FR Doc. 2021–13058 Filed 6–21–21; 8:45 am] BILLING CODE 4000–01–P DEPARTMENT OF COMMERCE a. Revising the definitions of ‘‘Conviction or convicted’’ and ‘‘Practitioner;’’ ■ b. Removing the entry for ‘‘Roster’’ and adding, in alphabetical order, an entry for ‘‘Roster or register;’’ and ■ c. Revising the definitions for ‘‘Serious crime’’ and ‘‘State.’’ The revisions and addition read as follows: ■ Andrew Hirshfeld, Commissioner for Patents, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Patent and Trademark Office 37 CFR Part 11 [Docket No.: PTO–C–2013–0042] [FR Doc. 2021–13145 Filed 6–21–21; 8:45 am] RIN 0651–AC91 BILLING CODE 3510–16–P Changes to Representation of Others Before the United States Patent and Trademark Office; Correction United States Patent and Trademark Office, Commerce. ACTION: Final rule; correction. Copyright Office The United States Patent and Trademark Office (USPTO or Office) is correcting an earlier final rule, ‘‘Changes to the Representation of Others Before the United States Patent and Trademark Office,’’ that appeared in the Federal Register on May 26, 2021 and which takes effect on June 25, 2021. This document corrects a minor error. No other changes are being made to the underlying final rule. DATES: This rule is effective June 25, 2021. [Docket No. 2021–3] AGENCY: 37 CFR Parts 201, 202, 203, 210, and 370 SUMMARY: FOR FURTHER INFORMATION CONTACT: lotter on DSK11XQN23PROD with RULES1 LIBRARY OF CONGRESS William R. Covey, Deputy General Counsel for Enrollment and Discipline and Director of the Office of Enrollment and Discipline, at 571–272–4097. SUPPLEMENTARY INFORMATION: This document corrects an error pertaining to revisions to definitions made in the final rule. Specifically, the Office intended to change the listed definition of ‘‘Roster’’ to ‘‘Roster or register.’’ The Code of Federal Regulations editors informed the Office that the original Federal Register instruction to ‘‘revise’’ the definition was incorrect. Rather, the correct instruction should be to ‘‘remove and add’’ the intended definition. This document corrects that instruction. In FR Doc. 2021–10528, appearing on page 28442 in the Federal Register of Wednesday, May 26, 2021, the following correction is made: § 11.1 [Corrected] On page 28452, in the first column, in part 11, correct amendatory instruction 4 to read as follows: ■ 4. Amend § 11.1 by: ■ VerDate Sep<11>2014 18:33 Jun 21, 2021 Jkt 253001 Technical Amendments Regarding the Copyright Office’s Organizational Structure U.S. Copyright Office, Library of Congress. ACTION: Final rule. AGENCY: This final rule makes technical changes to the U.S. Copyright Office’s regulations pertaining to its organizational structure in light of the agency’s recent reorganization. It reflects recent structural changes, updates certain of the Office’s division names, and adds a new section for the Copyright Claims Board established by the Copyright Alternative in SmallClaims Enforcement Act of 2020. DATES: Effective July 22, 2021. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at regans@copyright.gov, Kevin R. Amer, Deputy General Counsel, by email at kamer@copyright.gov, or Joanna R. Blatchly, Attorney-Advisor, by email at jblatchly@copyright.gov or by telephone at (202) 707–8350. SUPPLEMENTARY INFORMATION: The Copyright Office is publishing this final rule pursuant to its May 2021 reorganization. This effort is intended to accomplish two goals: (1) Rename divisions and realign certain reporting structures to improve the Office’s effectiveness and efficiency; and (2) reflect the agency structure for the new copyright small-claims tribunal established by the Copyright Alternative SUMMARY: PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 in Small-Claims Enforcement (‘‘CASE’’) Act of 2020.1 The Register has determined that these changes will optimize business processes and aid in the administration of her functions and duties as Director of the Copyright Office.2 Operational reorganization. The reorganization reduces the number of direct reports to the Register of Copyrights and is expected to create administrative and cost efficiencies by consolidating operational organizations currently headed by senior-level positions. The reorganization brings the Office of the Chief Financial Officer (renamed the Financial Management Division) and the Copyright Modernization Office (renamed the Product Management Division) under the supervision of the Chief of Operations (renamed the Assistant Register and Director of Operations (‘‘ARDO’’)). Realigning these divisions under the ARDO consolidates operational support elements under one senior manager, in line with operational structures across the Library of Congress. This consolidation is expected to facilitate Office coordination with centralized Library services, and with similar functional elements of other service units. It is also expected to allow the Office to increase the effectiveness of communications across areas of operational responsibility, in alignment with strategic objectives. The reorganization renames certain organizational elements and senior positions for purposes of greater clarity and consistency. The Office of Public Records and Repositories is renamed the Office of Copyright Records. As noted above, the Office of the Chief of Operations is renamed the Office of the Director of Operations. The following subordinate offices are also renamed: The Copyright Acquisitions Division (‘‘CAD’’) is renamed Acquisitions and Deposits (‘‘A&D’’); the Administrative Services Office (‘‘ASO’’) is renamed the Administrative Services Division (‘‘ASD’’); and the Receipt Analysis and Control Division (‘‘RAC’’) is renamed the Materials Control and Analysis Division (‘‘MCA’’). The Copyright Modernization Office (‘‘CMO’’) is renamed the Product Management Division (‘‘PMD’’). Further, the Office of the Chief Financial Officer (‘‘CFO’’) is renamed the Financial Management Division (‘‘FMD’’) and work units under this division are also renamed, including by 1 Public Law 116–260, sec. 212, 134 Stat. 1182, 2176 (2020). 2 See 17 U.S.C. 701(a). E:\FR\FM\22JNR1.SGM 22JNR1

Agencies

DEPARTMENT OF EDUCATION

[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Rules and Regulations]
[Pages 32637-32640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13058]


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DEPARTMENT OF EDUCATION

34 CFR Chapter I


Enforcement of Title IX of the Education Amendments of 1972 With 
Respect to Discrimination Based on Sexual Orientation and Gender 
Identity in Light of Bostock v. Clayton County

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Interpretation.

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SUMMARY: The U.S. Department of Education (Department) issues this 
interpretation to clarify the Department's enforcement authority over 
discrimination based on sexual orientation and discrimination based on 
gender identity under Title IX of the Education Amendments of 1972 in 
light of the Supreme Court's decision in Bostock v. Clayton County. 
This interpretation will guide the Department in processing complaints 
and conducting investigations, but it does not itself determine the 
outcome in any particular case or set of facts.

DATES: This interpretation is effective June 22, 2021.

FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, Director, Program 
Legal Group, Office for Civil Rights. Telephone: (202) 245-7272. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Background: Title IX of the Education Amendments of 1972, 20 U.S.C. 
1681-1688, prohibits discrimination on the basis of sex in any 
education program or activity offered by a recipient of Federal 
financial assistance. The Department's Office for Civil Rights (OCR) is 
responsible for the Department's enforcement of Title IX.
    OCR has long recognized that Title IX protects all students, 
including students who are lesbian, gay, bisexual, and transgender, 
from harassment and other forms of sex discrimination. OCR also has 
long recognized that Title IX prohibits harassment and other forms of 
discrimination against all students for not conforming to stereotypical 
notions of masculinity and femininity. But OCR at times has stated that 
Title IX's prohibition on sex discrimination does not encompass 
discrimination based on sexual orientation and gender identity. To 
ensure clarity, the Department issues this Interpretation addressing 
Title IX's coverage of discrimination based on sexual orientation and 
gender identity in light of the Supreme Court decision discussed below.
    In 2020, the Supreme Court in Bostock v. Clayton County, 140 S. Ct. 
1731, 590 U.S. __ (2020), concluded that discrimination based on sexual 
orientation and discrimination based on gender identity inherently 
involve treating individuals differently because of their sex. It 
reached this conclusion in the context of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. 2000e et seq., which prohibits sex 
discrimination in employment. As noted below, courts rely on 
interpretations of Title VII to inform interpretations of Title IX.
    The Department issues this Interpretation to make clear that the 
Department interprets Title IX's prohibition on sex discrimination to 
encompass discrimination based on sexual orientation and gender 
identity and to provide the reasons for this interpretation, as set out 
below.
    Interpretation:
    Title IX Prohibits Discrimination Based on Sexual Orientation and 
Gender Identity.
    Consistent with the Supreme Court's ruling and analysis in Bostock, 
the Department interprets Title IX's prohibition on discrimination ``on 
the basis of sex'' to encompass discrimination on the basis of sexual 
orientation and gender identity. As was the case for the Court's Title 
VII analysis in Bostock, this interpretation flows from the statute's 
``plain terms.'' See Bostock, 140 S. Ct. at 1743, 1748-50. Addressing 
discrimination based on sexual orientation and gender identity thus 
fits squarely within OCR's responsibility to enforce Title IX's 
prohibition on sex discrimination.

I. The Supreme Court's Ruling in Bostock

    The Supreme Court in Bostock held that sex discrimination, as 
prohibited by Title VII, encompasses discrimination based on sexual 
orientation and gender identity. The Court explained that to 
discriminate on the basis of sexual orientation or gender identity 
``requires an employer to intentionally treat individual employees 
differently because of their sex.'' 140 S. Ct. at 1742.\1\ As the Court 
also explained,

[[Page 32638]]

when an employer discriminates against a person for being gay or 
transgender, the employer necessarily discriminates against that person 
for ``traits or actions it would not have questioned in members of a 
different sex.'' Id. at 1737.
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    \1\ The Court recognized that the parties in Bostock each 
presented a definition of ``sex'' dating back to Title VII's 
enactment, with the employers' definition referring to 
``reproductive biology'' and the employees' definition ``capturing 
more than anatomy[.]'' 140 S. Ct. at 1739. The Court did not adopt a 
definition, instead ``assum[ing]'' the definition of sex provided by 
the employers that the employees had accepted ``for argument's 
sake.'' Id. As the Court made clear, it did not need to adopt either 
definition to conclude that discrimination ``because of . . . sex'' 
encompasses discrimination based on sexual orientation and gender 
identity. Id. (``[N]othing in our approach to these cases turns on 
the outcome of the parties' debate . . . .''). Similar to the 
Court's interpretation of Title VII, the Department's interpretation 
of the scope of discrimination ``on the basis of sex'' under Title 
IX does not require the Department to take a position on the 
definition of sex, nor do we do so here.
---------------------------------------------------------------------------

    The Court provided numerous examples to illustrate why ``it is 
impossible to discriminate against a person'' because of their sexual 
orientation or gender identity ``without discriminating against that 
individual based on sex.'' Id. at 1741. In one example, when addressing 
discrimination based on sexual orientation, the Court stated:

    Consider, for example, an employer with two employees, both of 
whom are attracted to men. The two individuals are, to the 
employer's mind, materially identical in all respects, except that 
one is a man and the other a woman. If the employer fires the male 
employee for no reason other than the fact he is attracted to men, 
the employer discriminates against him for traits or actions it 
tolerates in his female colleague. Put differently, the employer 
intentionally singles out an employee to fire based in part on the 
employee's sex, and the affected employee's sex is a but-for cause 
of his discharge.

Id.
    In another example, the Court showed why singling out a transgender 
employee for different treatment from a non-transgender (i.e., 
cisgender) employee is discrimination based on sex:

[T]ake an employer who fires a transgender person who was identified 
as a male at birth but who now identifies as a female. If the 
employer retains an otherwise identical employee who was identified 
as female at birth, the employer intentionally penalizes a person 
identified as male at birth for traits or actions that it tolerates 
in an employee identified as female at birth. Again, the individual 
employee's sex plays an unmistakable and impermissible role in the 
discharge decision.

Id. at 1741-42.

II. Bostock's Application to Title IX

    For the reasons set out below, the Department has determined that 
the interpretation of sex discrimination set out by the Supreme Court 
in Bostock--that discrimination ``because of . . . sex'' encompasses 
discrimination based on sexual orientation and gender identity--
properly guides the Department's interpretation of discrimination ``on 
the basis of sex'' under Title IX and leads to the conclusion that 
Title IX prohibits discrimination based on sexual orientation and 
gender identity.
    a. There is textual similarity between Title VII and Title IX.
    Like Title VII, Title IX prohibits discrimination based on sex.
    Title IX provides, with certain exceptions: ``No person in the 
United States shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance . . . .'' 20 U.S.C. 1681(a).
    Title VII provides, with certain exceptions: ``It shall be an 
unlawful employment practice for an employer (1) to fail or refuse to 
hire or to discharge any individual, or otherwise to discriminate 
against any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of such individual's . 
. . sex[ ] . . .; or (2) to limit, segregate, or classify his employees 
or applicants for employment in any way which would deprive or tend to 
deprive any individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of such 
individual's . . . sex[ ] . . . .'' 42 U.S.C. 2000e-2(a). (Title VII 
also prohibits discrimination based on race, color, religion, and 
national origin.)
    Both statutes prohibit sex discrimination, with Title IX using the 
phrase ``on the basis of sex'' and Title VII using the phrase ``because 
of'' sex. The Supreme Court has used these two phrases interchangeably. 
In Bostock, for example, the Court described Title VII in this way: 
``[I]n Title VII, Congress outlawed discrimination in the workplace on 
the basis of race, color, religion, sex, or national origin.'' 140 S. 
Ct. at 1737 (emphasis added); id. at 1742 (``[I]ntentional 
discrimination based on sex violates Title VII . . . .'' (emphasis 
added)); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 
(2005) (``[W]hen a funding recipient retaliates against a person 
because he complains of sex discrimination, this constitutes 
intentional `discrimination' `on the basis of sex,' in violation of 
Title IX.'' (second emphasis added)); Meritor Sav. Bank v. Vinson, 477 
U.S. 57, 64 (1986) (``[W]hen a supervisor sexually harasses a 
subordinate because of the subordinate's sex, that supervisor 
`discriminate[s]' on the basis of sex.'' (emphasis added)).
    In addition, both statutes specifically protect individuals against 
discrimination. In Bostock, 140 S. Ct. at 1740-41, the Court observed 
that Title VII ``tells us three times--including immediately after the 
words `discriminate against'--that our focus should be on 
individuals.'' The Court made a similar observation about Title IX, 
which uses the term person, in Cannon v. University of Chicago, 441 
U.S. 677, 704 (1979), stating that ``Congress wanted to avoid the use 
of federal resources to support discriminatory practices [and] to 
provide individual citizens effective protection against those 
practices.'' Id. (emphasis added).
    Further, the text of both statutes contains no exception for sex 
discrimination that is associated with an individual's sexual 
orientation or gender identity. As the Court stated in Bostock, ``when 
Congress chooses not to include any exceptions to a broad rule, courts 
apply the broad rule.'' 140 S. Ct. at 1747. The Court has made a 
similar point regarding Title IX: ``[I]f we are to give Title IX the 
scope that its origins dictate, we must accord it a sweep as broad as 
its language.'' N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982) 
(citations and internal alterations omitted). It also bears noting 
that, in interpreting the scope of Title IX's prohibition on sex 
discrimination the Supreme Court and lower Federal courts have often 
relied on the Supreme Court's interpretations of Title VII. See, e.g., 
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992); Jennings 
v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Frazier v. 
Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002); Gossett v. 
Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 
(10th Cir. 2001).
    Moreover, the Court in Bostock found that ``no ambiguity exists 
about how Title VII's terms apply to the facts before [it]''--i.e., 
allegations of discrimination in employment against several individuals 
based on sexual orientation or gender identity. 140 S. Ct. at 1749. 
After reviewing the text of Title IX and Federal courts' interpretation 
of Title IX, the Department has concluded that the same clarity exists 
for Title IX. That is, Title IX prohibits recipients of Federal 
financial assistance from discriminating based on sexual orientation 
and gender identity in their education programs and activities. The 
Department also has concluded for the reasons described in this 
document that, to the extent other interpretations may exist, this is 
the best interpretation of the statute.
    In short, the Department finds no persuasive or well-founded basis 
for declining to apply Bostock's reasoning--discrimination ``because of

[[Page 32639]]

. . . sex'' under Title VII encompasses discrimination based on sexual 
orientation and gender identity--to Title IX's parallel prohibition on 
sex discrimination in federally funded education programs and 
activities.
    b. Additional case law recognizes that the reasoning of Bostock 
applies to Title IX and that differential treatment of students based 
on gender identity or sexual orientation may cause harm.
    Numerous Federal courts have relied on Bostock to recognize that 
Title IX's prohibition on sex discrimination encompasses discrimination 
based on sexual orientation and gender identity. See, e.g., Grimm v. 
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as 
amended (Aug. 28, 2020), reh'g en banc denied, 976 F.3d 399 (4th Cir. 
2020), petition for cert filed, No. 20-1163 (Feb. 24, 2021); Adams v. 
Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), 
petition for reh'g en banc pending, No. 18-13592 (Aug. 28, 2020); 
Koenke v. Saint Joseph's Univ., No. CV 19-4731, 2021 WL 75778, at *2 
(E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-01486, 
2020 WL 5993766, at *11 n.61 (M.D. Pa. Oct. 9, 2020).
    The Department also concludes that the interpretation set forth in 
this document is most consistent with the purpose of Title IX, which is 
to ensure equal opportunity and to protect individuals from the harms 
of sex discrimination. As numerous courts have recognized, a school's 
policy or actions that treat gay, lesbian, or transgender students 
differently from other students may cause harm. See, e.g., Grimm, 972 
F.3d at 617-18 (describing injuries to a transgender boy's physical and 
emotional health as a result of denial of equal treatment); Adams, 968 
F.3d at 1306-07 (describing ``emotional damage, stigmatization and 
shame'' experienced by a transgender boy as a result of being subjected 
to differential treatment); Whitaker ex rel. Whitaker v. Kenosha 
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044-46, 1049-50 
(7th Cir. 2017) (describing physical and emotional harm to a 
transgender boy who was denied equal treatment); Dodds v. U.S. Dep't of 
Educ., 845 F.3d 217, 221-22 (6th Cir. 2016) (describing ``substantial 
and immediate adverse effects on the daily life and well-being of an 
eleven-year-old'' transgender girl from denial of equal treatment); 
Doe, 2020 WL 5993766, at **1-3 (describing harassment and physical 
targeting of a gay college student that interfered with the student's 
educational opportunity); Harrington ex rel. Harrington v. City of 
Attleboro, No. 15-CV-12769-DJC, 2018 WL 475000, at **6-7 (D. Mass. Jan. 
17, 2018) (describing `` `wide-spread peer harassment' and physical 
assault [of a lesbian high school student] because of stereotyping 
animus focused on [the student's] sex, appearance, and perceived or 
actual sexual orientation'').
    c. The U.S. Department of Justice's Civil Rights Division has 
concluded that Bostock's analysis applies to Title IX.
    The U.S. Department of Justice's Civil Rights Division issued a 
Memorandum from Principal Deputy Assistant Attorney General for Civil 
Rights Pamela S. Karlan to Federal Agency Civil Rights Directors and 
General Counsels regarding Application of Bostock v. Clayton County to 
Title IX of the Education Amendments of 1972 (Mar. 26, 2021), https://www.justice.gov/crt/page/file/1383026/download.
    The memorandum stated that, after careful consideration, including 
a review of case law, ``the Division has determined that the best 
reading of Title IX's prohibition on discrimination `on the basis of 
sex' is that it includes discrimination on the basis of gender identity 
and sexual orientation.'' Indeed, ``the Division ultimately found 
nothing persuasive in the statutory text, legislative history, or 
caselaw to justify a departure from Bostock's textual analysis and the 
Supreme Court's longstanding directive to interpret Title IX's text 
broadly.''

III. Implementing This Interpretation

    Consistent with the analysis above, OCR will fully enforce Title IX 
to prohibit discrimination based on sexual orientation and gender 
identity in education programs and activities that receive Federal 
financial assistance from the Department. As with all other Title IX 
complaints that OCR receives, any complaint alleging discrimination 
based on sexual orientation or gender identity also must meet 
jurisdictional requirements as defined in Title IX and the Department's 
Title IX regulations, other applicable legal requirements, as well as 
the standards set forth in OCR's Case Processing Manual, www.ed.gov/ocr/docs/ocrcpm.pdf.\2\
---------------------------------------------------------------------------

    \2\ Educational institutions that are controlled by a religious 
organization are exempt from Title IX to the extent that compliance 
would not be consistent with the organization's religious tenets. 
See 20 U.S.C. 1681(a)(3).
---------------------------------------------------------------------------

    Where a complaint meets applicable requirements and standards as 
just described, OCR will open an investigation of allegations that an 
individual has been discriminated against because of their sexual 
orientation or gender identity in education programs or activities. 
This includes allegations of individuals being harassed, disciplined in 
a discriminatory manner, excluded from, denied equal access to, or 
subjected to sex stereotyping in academic or extracurricular 
opportunities and other education programs or activities, denied the 
benefits of such programs or activities, or otherwise treated 
differently because of their sexual orientation or gender identity. OCR 
carefully reviews allegations from anyone who files a complaint, 
including students who identify as male, female or nonbinary; 
transgender or cisgender; intersex; lesbian, gay, bisexual, queer, 
heterosexual, or in other ways.
    While this interpretation will guide the Department in processing 
complaints and conducting investigations, it does not determine the 
outcome in any particular case or set of facts. Where OCR's 
investigation reveals that one or more individuals has been 
discriminated against because of their sexual orientation or gender 
identity, the resolution of such a complaint will address the specific 
compliance concerns or violations identified in the course of the 
investigation.
    This interpretation supersedes and replaces any prior inconsistent 
statements made by the Department regarding the scope of Title IX's 
jurisdiction over discrimination based on sexual orientation and gender 
identity. This interpretation does not reinstate any previously 
rescinded guidance documents.
    Accessible Format: On request to the contact person listed under 
FOR FURTHER INFORMATION CONTACT, individuals with disabilities can 
obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit

[[Page 32640]]

your search to documents published by the Department.

Suzanne B. Goldberg,
Acting Assistant Secretary for Civil Rights.
[FR Doc. 2021-13058 Filed 6-21-21; 8:45 am]
BILLING CODE 4000-01-P

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