Apr 6 2021
The U.S. Supreme Court held in its 2020 opinion in Bostock v. Clayton County that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 extends to discrimination on the basis of sexual orientation and gender identity as well. This is so, Justice Neil M. Gorsuch writing for the Court said, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
In a previous article, I noted that, although Title VII only prohibits discrimination in employment, Bostock was likely to extend into other substantive areas – “from housing, to small business loans, to military operations.” Indeed, according to the logic of the Bostock Court’s opinion, any federal law that prohibits discrimination “because of [an] individual’s . . . sex” almost certainly would extend to lesbian, gay, and transgender people, too. This is especially important in the context of Title IX – the federal law that bars sex discrimination by educational institutions that receive federal funding – which recently has become a hot-button topic in the so-called culture wars.
Now the federal Department of Justice has issued a Memorandum clarifying its understanding of Bostock. Specifically, the Department says that, after Bostock, “the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.” This is so, the Department explains, because Title VII and Title IX are very similar and because Title IX does not contain any “indications to the contrary.”
This clear statement by the Department of Justice likely will inform how other federal agencies interpret laws within their respective jurisdictions. And although the DOJ Memorandum may not have the force of law, other agencies in the Biden Administration are likely to issue interpretive regulations that do.
LGBT students and employees in Connecticut already enjoy the protections of Connecticut’s broad anti-discrimination laws, which have applied to LGBT people for years. This Memorandum, however, reinforces an additional avenue that people subjected to sex, sexual orientation, and gender identity discrimination can pursue. And since Title IX has a longer limitations period than other civil rights laws and no statutory cap on damages, that may be a worthwhile avenue to consider.