Bostock Decision and its Impact on Title IX

Micah Kamrass, Fraternal Law Partners, mkamrass@manleyburke.com

On June 15, 2020 the Supreme Court of the United States decided an employment law case captioned Bostock v. Clayton County, Georgia.^[1]Ultimately, the Court held that Title VII’s prohibition on discrimination on the basis of sex in the workplace includes discrimination on the basis of sexual orientation and/or gender identity. This resolved a circuit split that had occurred at the Court of Appeals level, which had created uncertainty in this area of law.

In addition to this new holding, the Court also held that Title VII is violated if an employer treats men and women in a similarly discriminatory manner. For example, firing a man for being insufficiently masculine and firing a woman for being insufficiently feminine does not protect the employer from discrimination claims. Instead, it just creates two different examples of sex-based discrimination.

While Bostock was a Title VII employment case, it has already had major impacts in the education. The reason for this is that Title IX’s prohibition on sex-based discrimination in educational programs or activities that receive federal funding is written very similarly to the prohibition in Title VII.

As we previously reported, the Bostock decision was cited by Harvard for why it abandoned its policy to punish students who join single sex organizations.^[2]Harvard was persuaded that the trial court’s decision, which had similar reasoning to the Bostock decision, would ultimately be upheld if Harvard continued to litigate the case.

On August 26, 2020, the Fourth Circuit Court of Appeals cited and applied the Bostockdecision to a Title IX case captioned Grimm v. Gloucester County School Board.^[3]This case involving whether or not a school can prohibit a transgender boy from using the boys’ restroom has been in the news for several years. The Court wrote, “[a]fter the Supreme Court’s recent decision in Bostock…, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’ Although Bostockinterprets Title VII… it guides our evaluation of claims under Title IX.”^[4]

Fraternal Law will continue to report on these developments, but a clear trend is emerging that the Bostock decision will have major ramifications on Title IX and education law.

[1]590 U.S. _____ (2020).

[2]See Burke, Timothy B. Following Defeats in Court, Harvard Abandons its Anti-Fraternity and Sorority Policy.165Fraternal Law (Jul. 2020.)

[3]Case no. 19-1952 (4^thCir., 2020).

[4]Id. at 52.