Last-Minute Department of Education Memo Says Title IX Does Not Protect LGBTQ Community

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

On January 8, 2021, less than two weeks before the change in presidential administrations, and one day following the resignation of the Secretary of Education, the U.S. Department of Education issued a memorandum stating its view on Title IX and the LGBTQ community.^[1] 

More specifically, the memo addresses an issue we have previously covered in Fraternal Lawregarding the applicability of the U.S. Supreme Court’s Bostock decision to Title IX.^[2]To the surprise of many, the Supreme Court held in Bostockthat discrimination on the basis of sex includes discrimination on the basis of sexual orientation or gender identity in the context of Title VII employment discrimination. Numerous scholars and even several federal courts have already stated that if this is how the Supreme Court defines sex-based discrimination for purposes of employment, then the definition must also be extended to sex-based discrimination in the context of Title IX.

The new memo from the Department of Education states the opposite. It argues that Bostockshould not be applied to Title IX. The memo outlines a view that sex-based discrimination in education does not include discrimination on the basis of gender identity or sexual orientation. With this logic, the memo essentially states that recipients of federal education funding (including almost every college and university) may discriminate on the basis of sexual orientation or gender identity without violating Title IX.

Specific to single-sex social fraternities and sororities, the memo states that the Title IX exemption only applies if groups are entirely single-sex as it pertains to biological sex. Stated more simply, it is the view of the Department of Education that if a sorority admits a transgender female, then it is not eligible for the Title IX exemption. Conversely, if a sorority admits a transgender male, it would be eligible for the Title IX exemption.

The interpretation of law found in the memo is contrary to common practices for most fraternities and sororities. It is also contrary to what most people believe will be the interpretation of many federal judges and the U.S. Supreme Court. It is certainly contrary to the interpretation held by the Obama/Biden administration, which most believe will also be the interpretation of the Biden/Harris administration. Since this is a memo with no binding authority issued by a lame duck administration without a Secretary of Education, it is the view of Fraternal Lawthat little, if any, value should be attributed to this memo. Nonetheless, we wanted to make sure to report about it so that you are aware of what it says.

[1]Memorandum from Reed Rubinstein, Principal Deputy Gen. Counsel, U.S. Dept. of Educ., to Kimberly M. Richey, Acting Assistant Sec’y, Office of Civil Rights (Jan. 8, 2021).

[2]Micah Kamrass, Bostock Decision and its Impact on Title IX, 166 Fraternal L.12 (Sept. 2020).