The recent Notice of Interpretation issued from the U.S. Department of Education’s Office for Civil Rights confirms its intent to enforce Title IX to prohibit discrimination against LGBTQ+ students.
Using the analysis in Bostock v. Clayton County, 590 U.S. ____, (2020), the Department of Education will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.
Consistent with the Seventh Circuit’s decision in Whitaker v. Kenosha Unified School District (7th Cir. 2017) and ISBE’s March 1, 2020, non-regulatory guidance “Supporting Transgender, Nonbinary and Gender Nonconforming Students,” school districts should continue to accommodate transgender students based on their gender identity, including using their affirmed names/pronouns and providing access to facilities and activities based on their gender identity.
The Department of Education’s Notice of Interpretation is available here.
If you have any questions regarding this Notice, as well as Title IX training, please contact Michelle Todd, Jen Deutch, Jessica Nguyen, or Kaitlin Atlas.
Sources:
Bostock v. Clayton County, 590 U.S. ____, (2020)
Whitaker v. Kenosha Unified School District (7th Cir. 2017)
“Supporting Transgender, Nonbinary and Gender Nonconforming Students”
