In short, the Court held that sexual orientation and gender identity are captured within Title VII’s prohibition against discrimination “on the basis of sex.”Title VII and Title IX both offer protections “on the basis of sex” – the former in employment and the latter in education. The prohibition against sex discrimination under Section 1557 flows from its reference to Title IX, as the rule borrows its grounds for prohibiting discrimination on each relevant basis from an existing civil rights law: “The grounds are the grounds prohibited under the following statutes …. (2) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) (sex)…”In a bulletin we authored in November 2019, we predicted that the Supreme Court’s then-forthcoming decision regarding Title VII may determine what would happen with the then-proposed changes to Section 1557.

Two years after her dismissal, Doe brought suit against Mercy alleging three claims under Title IX: quid pro quo harassment, hostile environment and retaliation. The United States District Court for the Eastern District of Pennsylvania dismissed Doe's complaint on the grounds that Title IX did not apply to Mercy as its residency program did not qualify as an "education program or activity" as required by 20 U.S.C. §1681(a). The court further held that even if Title IX did apply, Doe could not use Title IX to circumvent Title VII's administrative requirements – which Doe had not fulfilled – since Congress had intended Title VII to be the "exclusive avenue for relief" for employment discrimination claims.

The Court affirmed the dismissal of the lawsuit filed by Equity in Athletics Inc. (“EIA”), a coalition of student athletes, coaches, parent, and fans, challenging JMU’s decision as violating the U.S. Constitution and Title IX.The LawTitle IX broadly prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. Although Title IX does not expressly address intercollegiate athletics, the Department of Education (“DOE”) has issued regulations regarding Title IX’s application to such programs; those regulations provide, in part, that a “recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.”

U.S. Department of Education issued final Title IX regulations governing sex discrimination complaints involving educational institutions.The regulations clarify terms, expand the geographical scope of Title IX, amend the investigation process, and include sexual orientation, gender identity, and pregnancy/lactation issues within Title IX’s protections.Educational institutions have until August 1, 2024, to update their policies and train staff on the new Title IX requirements.On April 19, 2024, the U.S. Department of Education issued its updated final regulations enforcing Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., which will govern sex discrimination complaints regarding conduct that occurs after August 1, 2024.1 Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving federal funds must comply with Title IX. The new regulations include significant changes affecting educational institutions as compared to prior Title IX regulations issued in 2020, including clarification of defined terms, an expanded geographical scope, changes to the investigative process, and the inclusion of sexual orientation, gender identity and pregnancy/lactation protections under Title IX. This Insight identifies some of the key updates in the new final regulations.“Sex-Based Harassment” Changed to “Severe or Pervasive” StandardOne key definition that has been clarified is the definition of sexual harassment per Section 106.2 of the

Read on to learn why educational and other nonprofit institutions should take note of the Buettner-Hartsoe opinion, which sets an important precedent for how tax-exempt status is interpreted in the context of Title IX and other laws that depend on the receipt of federal funding.Certain federal laws — including Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Amendment of 1964 and others — condition applicability on the receipt of federal funds. Thus, historically, educational institutions and other nonprofits have avoided application of these laws by declining to accept “federal financial assistance.” 20 U.S.C. § 1681(a). Independent schools and other nonprofit educational institutions that hold tax-exempt status under 26 U.S.C. § 501(c)(3) have long operated with the understanding that their tax-exempt status would not subject them to Title IX. However, this understanding recently came under challenge, as plaintiffs across the nation have attempted to argue that an institution’s 501(c)(3) status should qualify as “federal financial assistance” for purposes of Title IX.In August 2022, McGuireWoods reported on a decision in which the U.S. District Court of Maryland permitted a plaintiff’s Title IX claims against an independent school to proceed past a motion to dismiss because of the school’s tax-exempt status under § 501(c)(3). The district court held that § 501(c)(3) status was a form of congressional subsidy, and therefore constituted federal financial assistance under Title IX. After that decision, the court certified an interlocutory appeal on the issue of whether § 501(c)(3) status constitutes re

Title IX was introduced in 1971 as a proposed amendment to the Education Amendments of 1971 and was subsequently codified at 20 U.S.C. §§ 1681–1688.8 The principal purpose of Title IX is set out in U.S.C. § 1681:No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.When the legislation was passed, public attention was centered on the effect Title IX would have on varsity sports, and until recently, the majority of Title IX litigation was centered on athletics. However, the number of sexual harassment claims filed under Title IX has increased significantly. There are 429 active Title IX investigations at elementary-secondary and post-secondary schools that pertain toallegations of sexual violence, according to the Department of Education (as of April 13, 2023), and 429 that pertain toallegations of sexual harassment. This is around double the number of pending Title IX claims related to athletics (118). Recent regulatory changes propose “informal resolutio

p.Plaintiff and his parents repeatedly reported this harassment to university officials, who dismissed it as plaintiff’s “need to adjust.”After a confrontational meeting with the coaches regarding the bullying, plaintiff was removed from the team and lost his athletic scholarship.Plaintiff filed suit, claiming that the Arizona Board of Regents and the University of Arizona violated Title IX by remaining deliberately indifferent to his harassment allegations and retaliating against him.He also sued the university coaches under 42 U.S.C. § 1983, alleging they violated his due process rights by depriving him of property interests in his place on the team and scholarship.The district court granted the defendants’ motions to dismiss and for judgment on the pleadings.Result: The Ninth Circuit affirmed in part and reversed in part.First, the Court held that discrimination on the basis of perceived sexual orientation qualifies as discrimination “on the basis of sex,” as proscribed by Title IX.20 U.S.C. § 1681(a).In Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court held that discrimination based on sexual orientation is a form of sex discrimination under Title VII.Because Title VII and Title IX’s protections are construed consistently, the Ninth Circuit concluded that Title IX similarly bars discrimination based on sexual orientation.The question thus became whether that protection extended to “perceived” sexual orientation.The Court held it did.Again looking to Title VII law for guidance, it observed that the law prohibited “discriminat[ing] against a person—male or female—for failure to conform to a particular masculine or feminine sex stereotype.”Here, plaintiff was harassed because he was perceived to be gay, and the harassment was thus “motivated by the stereotype that men should be attracted only to women.”Having resolved that legal question, the Court turned to plaintiff’s discrimination claim.A school is liable under Title IX for student-on-student harassment only if

The department states this process provided valuable information regarding the desire from many —including schools, students, parents, and coaches — for clarity on the rules surrounding transgender students’ participation in athletics. The proposed regulation shows the department following through on its word to strengthen protections for transgender athletes while also considering student safety and fairness.What Is Title IX?Title IX of the Education Amendments of 1972 prohibits covered educational institutions from engaging in discrimination on the basis of sex in educational programs and activities. In pertinent part, it reads:No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]20 U.S.C. § 1681. Despite the lack of a specific reference to sports within its language, Title IX and its corresponding regulations have been pivotal in advancing the interests of women and girls in athletics, calling for covered institutions to provide female athletes with equal athletic opportunity as their male counterparts.Proposed Language and Impact on Transgender AthletesTitle IX’s athletic regulation is found at 34 C.F.R. § 106.41. If adopted in its current form, the new regulation would be added at § 106.41(b)(2), and would read as follows:If a recipient adopts or applies sex-related criteria that would limit or deny a student's eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consisten

On April 6, 2023, the Department of Education Office for Civil Rights (“OCR”) issued a Notice of Proposed Rulemaking relating to Title IX, a federal law prohibiting sex discrimination in federally funded programs. 20 U.S.C. §1681(a). The proposal would amend the Title IX athletics regulation, 34 CFR §106.41, and prohibit schools from categorically banning transgender students from sports teams that correspond to their respective gender identity, as opposed to their assigned birth sex (subject to certain exceptions).For elementary school students, OCR proposed that students should be able to join sports teams consistent with their gender identity, explaining that it would be difficult for a school to justify excluding students immediately in middle or intermediary school from participating consistent with their gender identity. For high school and college students, OCR proposes that sex-related criteria limiting transgender students from participating on teams consistent with their gender identity can be permissible, but only when the school can show the purpose of the limitation is “substantially related” to an “important educational objective” (such as fairness in athletic competition) and that it is designed to

(a)(2)(B)(ii).RFRAHealthcare Organizations Enjoin Sex Discrimination Provisions of ACA and Title VII Requiring Them to Perform Gender TransitionsIn Religious Sisters of Mercy v. Becerra, 55 F.4th 583 (8th Cir. 2022), the court of appeals affirmed in part the decision of the district court granting the plaintiffs' motion for summary judgment and issuing a permanent injunction against enforcement of prohibitions against discrimination within Section 1557 of the Patient Protection and Affordable Care Act (ACA) and within Title VII "on the basis of sex," defined to include gender identification, otherwise requiring them to perform and provide insurance coverage for gender transitions as in violation of RFRA. Section 1557 of the ACA provides, in relevant part, that a federally funded or administered health program or activity is prohibited from denying benefits to, or subjecting to discrimination, an individual "on [a] ground prohibited under … Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)." Title IX, which states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," authorizes enforcement by terminating the federal funding of any noncomplying recipient.In 2016, the U.S. Department of Health and Human Services (HHS) promulgated a final rule implementing Section 1557 of the ACA, prohibiting discrimination on the basis of gender identity and sex stereotyping so as to outlaw categorical exclusion or limitation of coverage for all health services related to gender transition or hysterectomies for transgender men and so as to evaluate whether the denial of such procedures in individual cases is discriminatory. HHS declined to import Title IX's blanket religious exemption into Section 1557, but said that it would evaluate RFRA claims on a case-by-case circumstantial basis. HHS als