Civil Rights Division Of DOJ Explains Title IX Protects Gender Identification And Sexual Orientation Standing, Bringing Excessive-Stakes Showdown With Opposite State Legal guidelines One Step Nearer – Shopper Safety

United States:

The DOJ’s Civil Rights Division states that Title IX protects gender identity and sexual orientation status, and brings the showdown of conflicting state laws one step closer

April 12, 2021

Duane Morris LLP

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The Department of Civil Rights of the Justice Department released a memorandum on March 26, 2021 outlining the division’s position that Title IX prohibits discrimination based on transgender status and sexual orientation. In conclusion, the Division wishes to extend the US Supreme Court ruling in the Bostock v. Clayton Cnty case to Title IX, according to which the definition of “gender” in Title VII prohibits discrimination based on sexual orientation and gender identity in the context of employment.

The department characterizes its advice as an alleged “starting point” for federal authorities. But it’s more than that – the DOJ “is tasked with coordinating the implementation and enforcement of Title IX through the executive agencies.” As such, the department’s guidance will be extremely instructive to both federal agencies – most (if not all) likely to follow suit – and the courts.

As readers of our blog know, President Biden’s Executive Ordinance of January 20, 2021 required all federal agencies “to review any existing orders, regulations, guides, guidelines, programs, or other agency actions” that may not coincide with Biden’s are compatible with all federal laws. Bostock’s definition of “gender” (ie including gender identity and sexual orientation). Agencies should then develop plans to change or implement policies to meet this expanded definition of “gender”. Agencies must complete their review and remedial action development by April 30, 2021.

The Department of Education’s Civil Rights Bureau released a letter (discussed here) explaining the steps it is taking to complete its review, but has not yet given a final result.

The stage is almost ready: The Division’s memorandum brings us one step closer to a conflict between the federal agency’s enforcement of Title IX to protect transgender status and sexual orientation status against the rapidly growing number of government bans / restrictions on the same basis (e.g., biologically males who are banned from female sport). Schools are in the crosshairs of this clash as schools face the risk of fines, litigation, and / or the potential loss of federal funding for violating Title IX (or costly and time-consuming responses to department investigations) for violating any of the laws . against private lawsuits by students (including damages and legal fees) for violating state laws.

Schools of all levels and status (e.g. private, public, nonprofit, nonprofit) and sports agencies should be on high alert and remain vigilant as they carefully manage the growing conflict between state and federal law.

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