Section 2: Bostock and its Impact

Title VII Protections: Bostock v. Clayton County, 140 S. Ct. 1731 (2020)

In June of 2020, the U.S. Supreme Court issued a decision prohibiting employers from firing individuals on the basis of their sex. In the disputes before the court, longtime employees were fired shortly after revealing to their employers that they were homosexual or transgender. There were no alleged other explanations for the terminations. Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex and national origin. The Court held that “because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

Effectively, this decision incorporated sexual orientation and gender identity into the word “sex” under Title VII. It prohibited employers from hiring, firing or taking other adverse employment action against employees because of their sexual orientation or gender identity. Title VII applies specifically to employers with 15 or more employees.

In delivering its opinion, the Court noted that the decision does not extend beyond Title VII and that other federal or state laws prohibiting sex discrimination are unchanged. It made clear that issues of sex-segregated bathrooms, locker rooms and dress codes were not addressed or adjudicated on. However, Justice Alito’s dissent suggests that Title IX challenges to bathroom or locker room policy may be emboldened by the ruling.

Supreme Court Full Opinion

The Impact of Bostock

In response to the Supreme Court’s landmark decision in Bostock, many challenges have arisen regarding the effect of the Bostock decision on Title IX claims. National entities have sought to offer guidance on the meaning of Bostock for school districts and on whether such Title IX claims have merit.

National School Boards Association: School districts across the nation are now prohibited from firing homosexual or transgender employees. In such terminations, even if an employee’s sex, under the meaning of Title VII, is a motivating factor in an adverse employment action, the school district may be liable. The National School Boards Association advises school districts to “review their nondiscrimination policies to determine whether they should be updated to address treatment based on sexual orientation or gender identity.” It also advises school districts to educate school board members and employees on the Supreme Court’s ruling.

U.S. Department of Education Office for Civil Rights (OCR):

• In an August 31, 2020, revised letter in response to challenges in Connecticut to a rule allowing transgender student-athletes to participate in the interscholastic sports on the basis of gender identity (discussed below), OCR stressed that the Supreme Court’s opinion in Bostock “does not affect the Department’s position that its regulations authorize single-sex teams based only on biological sex at birth – male or female – as opposed to a person’s gender identity.” The letter notes that unlike Title VII, one of Title IX’s purposes is to protect women’s and girls’ athletic opportunities. It asserts that Bostock does not apply to Title IX, but even if it did, its reasoning “would only confirm that Title IX does not permit a biologically male student to compete against females on a sex-segregated team or in a sex-segregated league.”
• On January 8, 2021, OCR issued a memorandum containing its interpretation of Bostock. OCR’s interpretation of Title IX excludes protections for transgender students and opines that Title IX applies to students only on the basis of biological sex. It is OCR’s position that the term “sex” in Title IX means “biological sex, male or female.”

Title IX Interpretation by Courts: In Adams v. Sch. Bd. of St. Johns Cty and Grimm v. Gloucester Cty. Sch. Bd., two federal court cases discussed below, the Court’s reasoning and language regarding the meaning of “sex” under Title VII in Bostock was used as guidance for interpreting “sex” under Title IX.

National School Board Association guidance

OCR August 31, 2020 Revised Letter

OCR January 8, 2021 Memorandum