For an article in Inside Higher Ed, Bass, Berry & Sims attorney Audrey Anderson discussed how the Supreme Court’s landmark ruling related to LGBTQ workers’ protections under Title VII could impact the rights of students under Title IX at the high school and college level.
The Supreme Court’s 6-to-3 decision extended protections against employment discrimination to LGBTQ employees under Title VII of the Civil Rights Act of 1964 by holding that to discriminate on the basis of sexual orientation and gender identity is necessarily to discriminate “because of sex” under Title VII. This interpretation opens the door to challenges of what is encompassed by “discrimination on the basis of sex” under Title IX, which prohibits sex discrimination at federally funded educational institutions and raises questions of how schools can handle issues related to transgender student athletes and dorm and bathroom assignments.
The Department of Education under President Obama instructed colleges and schools to treat transgender students as the gender with which they identify, Audrey explained. However, the Trump administration rescinded this guidance in 2017, and last month, the Department found a Connecticut high school athletic conference in violation of Title IX for allowing transgender girls to compete in track against students who were assigned female at birth.
The Supreme Court’s ruling offers high schools in the Connecticut conference the opportunity to challenge the department’s decision and establish that discrimination based on sex applies to transgender students under Title IX. The ruling could also have implications for a current Title IX case where the court and counsel at oral argument recently suggested that the Supreme Court’s definition of “sex” under Title VII would be a determining factor in whether Title IX’s prohibition of discrimination based on sex protects a transgender high school student.
“If under Title VII it is unlawful discrimination to discriminate based on transgender status, that’s a good argument to say it’s a violation under Title IX to discriminate based on transgender status,” Audrey said. “It will be interesting to see what the department does in response to this. They have been very active in saying ‘sex’ is what you’ve been assigned at birth based on your biological characteristics.”
The full article, “Far-Reaching Consequences,” was published by Inside Higher Ed on June 16 and is available online. To read further analysis of the Supreme Court decision, click here.