Intersection of Title IX and LGBTQ+ Rights: Part One

This June, we are celebrating the 50th anniversary of the passage of Title IX of the Education Amendments Act of 1972—a critical law designed to prohibit sex discrimination in any educational program or activity receiving any type of Federal financial aid.  Three years prior to the passage of Title IX, the Stonewall riots began as a series of spontaneous demonstrations by members of the gay community in response to a police raid that began in the early morning hours of June 28, 1969.  In honor of the individuals who fought for LGBTQ+ rights, we celebrate June as Pride Month. 

Although the issues of sex discrimination and discrimination based on sexual orientation and gender identity may seem separate, their histories and impact on the law are linked.  This article will examine—in two parts—the history of Title IX with respect to LGBTQ+ rights as well as the impact both have on our workplaces and campuses today.

Does Title IX Apply to Sexual Orientation and Gender Identity?

When Richard Nixon signed Title IX on June 23, 1972, it became law that:

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.

From 1972 until 2021, however, it was an open question of whether Title IX prohibited discrimination based on sexual orientation or gender identity.  During this time period, three primary arguments arose for why Title IX should not prohibit discrimination based on sexual orientation or gender identity:

1)            On its face, “sex” means biological sex and does not include sexual orientation or gender identity. 

2)            When a campus or employer discriminates against gay men, lesbians, transgender men, and transgender women, it is discriminating against men and women equally.  Therefore, it is not discrimination on the basis of sex.

3)            When a campus or employer discriminates against LGBTQ+ individuals, the primary motivation is because of these individuals’ sexual orientation or gender identity, not primarily because of their sex.  For example, it is permissible for campuses to discriminate against lesbians so long as the campus does not discriminate against women as a group. 

For almost 40 years, courts struggled to find a definitive answer for whether Title IX prohibited discrimination based on sexual orientation or gender identity.  It was not until 2020 that the Supreme Court of the United States provided some clarity, at least under Title VII of the Civil Rights Act.  The Court determined the prohibition against discrimination “on the basis of sex” applied to discrimination based on sexual orientation and gender identity. 

Bostock v. Clayton County—The Definitive Answer 

In 2020, with Bostock v. Clayton County, the Supreme Court of the United States made the definitive decision that discrimination based on sex includes discrimination based on sexual orientation and gender identity within the context of Title VII of the Civil Rights Act.  Although the decision did not directly address Title IX, this landmark decision soon led the Department of Education to confirm that Title IX protections extend to those who are discriminated based on sexual orientation and gender identity.

The analysis in Bostock is informative to explain how the Court finally resolved this issue under Title VII, compelling the Department of Education to act under Title IX.

Bostock v. Clayton County came before the Supreme Court when Gerald Bostock—a Child Welfare Advocate for Clayton County, Georgia—sued the County for ending his employment based on his sexual orientation.  Bostock had been a County employee for over a decade.  Under Bostock’s leadership, the County had won national awards for its work.  When the County learned Bostock participated in a gay recreational softball league, however, the County ended Bostock’s employment for conduct “unbecoming” of a County employee.  In Bostock v. Clayton County, the Supreme Court considered Bostock’s case, as well as lawsuits brought by two other individuals—Donald Zarda, a gay man fired for mentioning he was gay; and, Aimee Stephens, a transgender woman who was fired for informing her employer that she intended to “live and work full-time as a woman.” 

In the Supreme Court’s decision, it determined discrimination “on the basis of sex” includes discrimination based on sexual orientation and gender identity.  In making this decision, the Court addressed the three primary arguments against expanding protections to LGBTQ+ individuals.  The Court held:

1)            It is impossible to discriminate against a person for their sexual orientation or gender identity without discriminating against that individual based on sex.  For example, if a campus or employer has two individuals both attracted to men—one man and one woman—yet only discriminates against the man for being attracted to men, the employer discriminated against him because he is a man. 

2)            When campuses and employers discriminate against men and women equally because of their sex (which includes sexual orientation and gender identity), they are not negating their liability.  Rather, they “double” liability by discriminating against both men and women.

3)            An individuals’ sex need not be the only motivating factor for the discrimination.  When a campus or employer discriminates against an individual for their sexual orientation or gender identity—characteristics intrinsically linked to sex—they are discriminating both based on sex and based on other characteristics (which is necessarily impermissible discrimination based on sex).

With Bostock v. Clayton County, the Supreme Court definitively determined discrimination based on sexual orientation or gender identity violated Title VII of the Civil Rights Act.  Although Title IX was not directly addressed in Bostock, on June 16, 2021, the Department of Education determined that it will enforce Title IX’s prohibition on discrimination to include discrimination based on sexual orientation and gender identity.  Additionally, courts have already begun applying the ruling to Title IX, which is often viewed as a sister statute to Title VII.  For example, in Grimm v. Gloucester County School Board, the 4th Circuit U.S. Court of Appeals prohibited schools from denying transgender students access to bathrooms that align with their gender identity.   

Next Article – Coming June 22:  The Impact of Title IX and LGBTQ+ Rights on Modern Workplaces and Campuses.

By prohibiting discrimination based on sexual orientation and gender identity, the Supreme Court changed the landscape of Title IX forever.  The next article will examine the impact and intersection of Title IX and LGBTQ+ rights in modern campuses. 

Katherine Guilford is an Associate Attorney with Van Dermyden Makus. She has investigated matters at K-12 Districts and Universities, including allegations involving discrimination, harassment, and retaliation. Katherine is trained in and is experienced with challenges that may arise in investigations with LGBTQ parties.