Justice Dept. Explains Bostock to Federal Agencies
Following Biden’s order, memo outlines how Supreme Court ruling impacts Title IX
BY ARTHUR S. LEONARD
Principal Deputy Assistant
Attorney General
Pamela S. Karlan of
the US Justice Department’s
Civil Rights Division issued
a memorandum to federal agency
civil rights directors and general
counsels on March 26 explaining
how the Supreme Court’s decision
from last June 15 in Bostock
v. Clayton County affects Title IX
of the Education Amendments of
1972.
The memo explains the general
statement by President Joe Biden
on January 20 in Executive Order
13988 that “laws that prohibit sex
discrimination — including Title
IX of the Education Amendments
of 1972 … along with their implementing
regulations — prohibit
discrimination on the basis of gender
identity or sexual orientation,
so long as the laws do not contain
suffi cient indications to the contrary.”
Title IX provides that educational
institutions that receive
federal funding may not discriminate
“on the basis of sex” in their
educational programs. During the
Trump Administration, both the
Department of Education and the
Department of Justice rejected the
argument that Title IX extends to
sexual orientation or gender identity
discrimination claims. The Education
Department actually issued
a regulation to that effect, rescinding
a contrary interpretation that
had been issued by the Obama
Administration, just days after the
Supreme Court’s Bostock ruling.
In Bostock, President Trump’s
appointee, Justice Neil Gorsuch,
wrote for a 6-3 majority that the
ban on discrimination “because of
sex” in Title VII of the Civil Rights
Act of 1964 extends to such claims
because, in the view of the Court, it
was impossible for an employer to
discriminate against an employee
because they are gay or transgender
without discriminating because
of their sex. In dissent, Justice
Samuel Alito protested that
the reasoning of the majority’s ruling
Principal Deputy Assistant Attorney General Pamela S. Karlan’s memorandum clarifi ed the impact of
Bostock on Title IX.
would apply to a list of about
a hundred federal statutory provisions
that prohibit discrimination
because of sex, which he helpfully
appended to his dissent. Title IX is
on that list.
Despite the Bostock ruling,
the Trump Administration Education
Department, which had
stopped investigating discrimination
claims by transgender students,
persisted in arguing that
such claims were not covered by
Title IX. The Justice Department
actually issued a memorandum
on January 17, just days before
the end of Trump’s term, reiterating
this position. Shortly after the
Biden Administration began, the
Justice Department’s Civil Rights
Division issued a letter withdrawing
the January 17 memorandum
because of its inconsistency with
Biden’s Executive Order 1398 and
indicated that a new directive
would be coming from the Division.
Karlan’s Memorandum is
that new directive.
There is poetic justice in Karlan
issuing the Memorandum because
she successfully argued the Bostock
case in the Supreme Court
in 2019, representing the LGBT
plaintiffs asking the Court to interpret
Title VII in their favor. Now,
as a recently appointed Biden Administration
offi cial, she gets to articulate
the new administration’s
REUTERS/TOM BRENNER
interpretation of that statute in
light of her victory in the Supreme
Court.
The memorandum added more
detail to President Biden’s assertion
that Title IX applies to such
cases. She pointed out that because
of the similarity in wording
of Title VII (“because of sex”)
and Title IX (“on account of sex”),
courts in Title IX cases “consistently
look to interpretations of Title
VII to inform Title IX,” so “Bostock’s
discussion of the text of Title
VII informs the Division’s analysis
of the text of Title IX.”
Karlan gave several reasons why
the Division concluded that Title
IX covers these categories of discrimination.
First, both Title VII
and Title IX apply to “sex discrimination
against individuals.” Second,
the terminology used could be
considered “interchangeable,” and
courts explaining Title VII’s ban
had even used the phrase “on the
basis of sex” in doing so. Third, the
reasoning underlying the Bostock
decision applies equally to Title IX,
which she found to be “consistent
with the Supreme Court’s longstanding
directive that ‘if we are
to give Title IX the scope that its
origins dictate, we must accord it a
sweep as broad as its language.’”
Karlan also noted that after the
Bostock decision, two federal appeals
courts had applied its reasoning
LEGAL
to rule in favor of transgender
litigants under Title IX, and two
other circuit courts of appeals had
reached similar conclusions prior
to Bostock, as long ago as 2016.
Thus, the Civil Rights Division
concluded that “the best reading”
of Title IX would apply it to sexual
orientation and gender identity
claims. The division 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 test
broadly.”
She concluded by stating her
hope that this memorandum
would provide a “starting point”
for the various agencies involved to
ensure “the consistent and robust
enforcement of Title IX, in furtherance
of the commitment that every
person should be treated with respect
and dignity.” Of course, since
the memorandum went to all federal
agencies, not just the Education
Department, it provides guidance
for determining the application of
Bostock’s reasoning to all the other
federal provisions banning sex
discrimination.
What the memorandum does
not address, however, is how agencies
and courts should resolve the
hot issue being pushed by Republicans
in state legislatures and
courts around the country: whether
transgender girls and women
should be allowed to compete in
women’s sports. The \department
has at least given a signal in that
regard by notifying the USDistrict
Court in Connecticut that it
was withdrawing a “statement of
interest” fi led by the Trump Justice
Department in a lawsuit by
two cisgender high school runners
challenging that state’s rules
allowing transgender women to
compete. Litigation is also pending
challenging recent state laws forbidding
transgender women from
competing. The Biden Administration
could quickly take an affi rmative
position by intervening on
behalf of the opponents of those
laws.
GayCityNews.com | APRIL 8 - APRIL 21, 2021 3
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