Title IX stands as a pillar for defending against sex-based discrimination, violence and assault in any school that receives federal funding. Initially, Title IX was enacted in 1972 to bridge a gap in federal law that failed to properly protect women, specifically in the school setting. However, opponents of Title IX fought the meaning of “federally funded,” and it wasn’t until the Civil Rights Restoration Act of 1987 that Title IX gained broad application to schools. If any part of an institution receives federal money through any means (grants for particular students, grants to school itself, etc.), then the whole institution is subject to Title IX protections. As such, cis-gender women gained the ability to seek equal opportunity and fair treatment in most schools throughout America. However, protections for students facing discrimination based on sexual orientation were still lacking at the federal level. This paper will view the expansions in Title IX protections both in the realm of sexual orientation and not, the Bostock decision and Notice of Interpretation following the decision, and conclude with predictions for the future based on these developments.
Since the enactment of Title IX, there have been countless advancements in campus safety for discrimination, violence, and assault of minorities. In addition to Title IX protections, The Clery Act requiring disclosure of on campus crimes to the public gained national attention and acclaim. Following that, in 2013, the scope of Clery was expanded by The Campus SaVE Act, which required disclosure of domestic violence, stalking, and dating violence in addition to sexual assault. While these acts, in conjunction with Title IX, have provided strong protections on campuses, the scope of Title IX protection has been debated in the process. More specifically, the question of whether Title IX protections apply to discrimination on the basis of transgender status or on the basis of sexual orientation. While the Supreme Court has not fully tackled this question, case law gives an insight as to where the law stands today.
Oncale v Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) established that Title VII “on the basis of sex” discrimination applies to members of the same sex. The holding in Oncale set the stage for Title IX protections, as many of the protections that Title IX affords are informed by the protections granted by Title VII; the two titles simply act in different spheres of society. However, this still left legal scholars unsure as to whether such protections could be extended to members of the LGBT community. Because the Supreme Court failed to explicitly address this issue, it is not surprising that many courts continued to fail to extend these protections to students based on sexual orientation. The Eighth Circuit held in Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.1989) that Title VII does not protection employees from harassment because of sexual orientation. Because so much of Title IX applicability follows Title VII applicability, courts throughout the nation followed these guidelines until the recent Bostock decision.
Around the turn of the century, certain jurisdictions began to hear arguments that Title VII and Title IX protections should apply when sexual orientation is at play. In Montgomery v. Independent School Dist. No. 709, 109 F.Supp.2d 1081 (D. Minn. 2000), Plaintiff was constantly tormented from kindergarten to 10th grade. Constantly being called slurs due to a perception of his sexual orientation, he was called “faggot,” “freak,” “queer,” etc. Montgomery at 1084. Additionally, starting in sixth grade, the torment became physical, with him being punched and kicked by his classmates. Id. As a result, plaintiff avoided the school cafeteria and bathrooms whenever possible because he did not want to be subjected to physical violence or verbal threats. Id. Plaintiff also claimed that because his abusers were involved in intramural sports, he never had the opportunity to participate in those as well. Id. at 1085. Plaintiff ceased riding the bus altogether because his harassers were not being disciplined strongly enough. Id. at 1086. Plaintiff eventually transferred after completing 10th grade and this lawsuit commenced. Id.
Even with contradicting federal rulings at the time as to whether sex stereotyping discrimination falls within Title IX’s purview, this court held that such cases are within Title IX’s purview and should survive a 12(c) motion to dismiss. Id. at 1102. “[B]y pleading facts from which a reasonable fact-finder could infer that he suffered harassment due to his failure to meet masculine stereotypes, plaintiff has stated a cognizable claim under Title IX.” Id. at 1092. However, while this court held that educational safeguards ensured by Title IX “on the basis of sex” applied to masculine stereotyping, it failed to extend those same protections to either real or perceived sexual orientation of the abused. “[T]o the extent that plaintiff asserts Title IX claims based on discrimination due to his sexual orientation or perceived sexual orientation, these claims are not actionable and must be dismissed.” Id. at 1090.
While the ruling in Montgomery was limited to Minnesota, there were no significant variations from that standard in the early 2000s: Title IX did not apply on the basis of sexual orientation. However, states were free to provide protection on that basis if they so chose. Shortly following this decision, New York added sexual orientation in its Human Rights Law as a protected class against discrimination, both in education and the workplace. N.Y.S. Human Rights Law § 296. To accomplish this, New York Assembly passed the Sexual Orientation Non-Discrimination Act, which was the tool that added actual or perceived sexual orientation to the protected classes in New York. California is similar to New York in the way that the state provides protections against discrimination for LGBT students before the federal government did. However, in 2015, a district court in California found that sexual orientation discrimination is in fact a violation of Title IX and does provide an adequate basis for a complaint.
In Videckis v. Pepperdine University, 150 F.Supp.3d 1151, (C.D. Cal. 2015), the District Court held that claims of sexual orientation discrimination are sex discrimination claims covered by Title IX. Pepperdine University receives federal funding and therefore is subject to the limitations of Title IX. Id. at 1155. In leading up to this action, Videckis and her girlfriend were players on Pepperdine’s women’s basketball team. In an attempt to get them to quit the team because of worry over how their relationship status might affect the team, members of the coaching staff would hold individual meetings with each woman and ask intrusive questions about sexual orientation and relationship status. Id. at 1156. The athletic academic coordinator, Conlogue, most often conducted these interviews. Id. The head coach, Ryan, told the team that lesbianism would not be tolerated and warned other members of the team to stay away from the two plaintiffs. Id. at 1158. Conlogue also launched an unwarranted cheating accusation against plaintiffs, as well as berated them during study halls. Id. As a result of this mistreatment, Plaintiffs commenced this action against the University.
In analyzing the Title IX claims regarding sexual orientation, the Court looks at both Ninth Circuit decisions, as well as other Circuits for persuasive authority. Id. at 1159. The court grapples with the question of whether discrimination based on sexual orientation is a “category of independent claims, separate from sex and gender stereotypes.” Id. The court held that sexual orientation is not its own category of protection, but rather is inherently intertwined with the protections of sex Title IX already provides. Id. at 1160. The opinion continues by saying that to “categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex . . . would result in a false choice.” Id. If the court were to separate the two categories, it would essentially put the victim’s attributes on trial. Id. The protections afforded by both Title IX and Title VII are concerned with the bias of the abuser; just as it would be absurd for a victim to prove his/her sexuality, it would be absurd to require a victim of racial discrimination to prove she is black. Id. As such, we can see that even prior to the Bostock decision and the Notice of Interpretation, certain courts already geared up to provide Title IX protections to LGBT students.
In 2020, the United States Supreme Court issued its holding in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). This landmark Supreme Court case held that Title VII protects employees on the basis of their sexual orientation; as such discrimination on the basis of sexual orientation is inherently discriminating on the basis of sex. In response to this holding, the Department of Education under the Trump administration released a memorandum construing the Bostock as it applies to Title IX protections. The acting assistant secretary for the office of civil rights issued this memorandum that declared that Bostock was a narrow holding and the Court “specifically refus[ed] to extend its holding to Title IX.” Memorandum for Kimberly M. Richey, U.S. Dept. Ed. (2021). This memo bases its argument in the idea that “sex” and human biology are inextricably linked and that, at the time of Title IX creation, that is the only way sex could have been met. Id. at 2. “[W]e emphasize that Title IX and its implementing regulations, unlike Title VII, may require consideration of a person’s biological sex, male or female.” Id. at 4. This policy statement reads completely wholly inconsistent with the Bostock decision, as well as the decisions made in courts for the previous thirty years. Since the enactment of Title IX, courts have informed the protections of Title IX by looking to the protections afforded by Title VII. It, therefore, seems intuitive that Bostock protections would extend to academia: and that is what happened when the Biden administration came to power.
Of the nine executive orders President Biden issued on his first day in office, one of them was to combat discrimination on the basis of sexual orientation. Exec. No. 13988, C.F.R. 2021-01761. In the onset of the order, Biden instills a policy argument that calls for equality for all people, regardless of sexual preference or orientation. Id. President Biden also called for review of all statutes and regulations that prevent discrimination on the basis of sexual orientation, as well as any necessary changes to implement to enforce them more efficiently. Id. The changes in transgender rights in this realm have been like a roller coaster, with the Obama administration treating a person’s gender identity as their sex. Jackson Lewis, Biden’s EO Expands Title IX to Prohibit LGBTQ Discrimination, (2021). Then, in 2017 with the Trump administration, that guidance was rescinded and finally reinstated with Biden. Id. Because of the ever-changing nature and direction of the Executive Branch, this recent Notice of Interpretation by the Department of Education provides more clear and concrete guidance as to Bostock’s effect on Title IX protections.
Because of the longstanding confusion regarding Title IX’s applicability to cases of sexual orientation discrimination, the Department of Education issued a Notice of Interpretation in 2021. Suzanne B. Goldberg, Federal Notice of Interpretation, U.S. Dept. Ed. 4000-01-U (2021). This Notice made clear that Title IX does extend to protections for cases of sexual orientation discrimination. Id. Consistent with previous judicial rulings, this notice found Title IX applicability because Title VII and Title IX have extreme textual similarities: both protecting “on the basis of sex.” Id. Additionally, the notice cites numerous federal cases within the last two years that have found the reasoning in Bostock sound and that differential treatment would cause undue harm. Id. at 9.
In conducting an interview with the University at Buffalo’s Title IX coordinator, Sharon Nolan-Weiss, helpful dialogue regarding both the past of UB’s Title IX experience, as well as some possible future outcomes were discussed. One main point that stuck out was the position of the Office of Civil Rights (OCR) in enforcing these notices. The main way OCR is able to enforce their policies is because the schools receive funding that could be pulled if the directives are not followed. However, Ms. Weiss informed me that she was unaware of any case in which the government actually went through with the threat of pulling funding, even when violations were found to have occurred. The question that leaves me with more than anything is: will more conservative states that really want to continue to fight the inclusion of transgender student equality call the veiled threat against them and fail to provide protections now required under Title IX? If anything, this also seems to follow into a constitutional challenge, which goes beyond the reach of this paper’s analysis. It does seem possible that some states could try to provide less preferential treatment for transgender, gay or lesbian students. However, OCR doesn’t have much discretion in what cases they take. While some factual basis must exist, OCR is required to conduct an investigation; the depth of those investigations will likely be where we see the crux of bias occur with this Notice of Interpretation.
The protections LGBT students throughout this country receive seem to change on the drop of a hat. One year it seems that both the courts and the legislature are fighting for stronger protections, and then the next year the executive branch is rescinding whatever protections it previously granted and the court is holding protections are not applicable where they were previously. Overall, the Notice of Interpretation and the Bostock decision seem to spell out a clear path to LGBT protection. But, paths that have seemed clear before in US history have not always been so; take for example this recent leakage of SCOTUS overturning Roe v. Wade. While the greater equality and protections should be appreciated, the fight to keep them is far from over, nor have we reached a goal we should be fully satisfied with. This country should strive to provide protections for LGBT students from all three branches of the federal government, not just one branch and state legislature.