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Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations
when an employer discriminates against a person for being gay or transgender, the employer necessarily discriminates against that person for traits or actions it would not have questioned in members of a different sex. Id. at 1737.
The Court provided numerous examples to illustrate why it is impossible to discriminate against a person because of their sexual orientation or gender identity without discriminating against that individual based on sex. Id. at 1741. In one example, when addressing discrimination based on sexual orientation, the Court stated:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employers mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employees sex, and the affected employees sex is a but-for cause of his discharge.

Id.
In another example, the Court showed why singling out a transgender employee for different treatment from a non-transgender i.e., cisgender employee is discrimination based on sex:
Take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employees sex plays an unmistakable and impermissible role in the discharge decision.

Id. at 174142.

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II. Bostocks Application to Title IX
For the reasons set out below, the Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock that discrimination because of . . .
sex encompasses discrimination based on sexual orientation and gender identityproperly guides the either definition to conclude that discrimination because of . . . sex encompasses discrimination based on sexual orientation and gender identity. Id.
Nothing in our approach to these cases turns on the outcome of the parties debate . . . .. Similar to the Courts interpretation of Title VII, the Departments interpretation of the scope of discrimination on the basis of sex under Title IX
does not require the Department to take a position on the definition of sex, nor do we do so here.

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Departments interpretation of discrimination on the basis of sex under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity.
a. There is textual similarity between Title VII and Title IX.
Like Title VII, Title IX prohibits discrimination based on sex.
Title IX provides, with certain exceptions: 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.
1681a.
Title VII provides, with certain exceptions: It shall be an unlawful employment practice for an employer 1 to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals . . . sex
. . .; or 2 to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals . . . sex . . . . 42 U.S.C.
2000e2a. Title VII also prohibits discrimination based on race, color, religion, and national origin.
Both statutes prohibit sex discrimination, with Title IX using the phrase on the basis of sex and Title VII using the phrase because of sex.
The Supreme Court has used these two phrases interchangeably. In Bostock, for example, the Court described Title VII
in this way: In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. 140 S.
Ct. at 1737 emphasis added; id. at 1742
Intentional discrimination based on sex violates Title VII . . . . emphasis added; see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 2005
When a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional discrimination on the basis of sex, in violation of Title IX.
second emphasis added; Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 64 1986
When a supervisor sexually harasses a subordinate because of the subordinates sex, that supervisor discriminates on the basis of sex.
emphasis added.
In addition, both statutes specifically protect individuals against
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discrimination. In Bostock, 140 S. Ct. at 174041, the Court observed that Title VII tells us three timesincluding immediately after the words discriminate againstthat our focus should be on individuals. The Court made a similar observation about Title IX, which uses the term person, in Cannon v. University of Chicago, 441
U.S. 677, 704 1979, stating that Congress wanted to avoid the use of federal resources to support discriminatory practices and to provide individual citizens effective protection against those practices. Id.
emphasis added.
Further, the text of both statutes contains no exception for sex discrimination that is associated with an individuals sexual orientation or gender identity. As the Court stated in Bostock, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. 140 S. Ct.
at 1747. The Court has made a similar point regarding Title IX: If we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language. N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 1982
citations and internal alterations omitted. It also bears noting that, in interpreting the scope of Title IXs prohibition on sex discrimination the Supreme Court and lower Federal courts have often relied on the Supreme Courts interpretations of Title VII. See, e.g., Franklin v. Gwinnett Cnty. Pub.
Sch., 503 U.S. 60, 75 1992; Jennings v.
Univ. of N.C., 482 F.3d 686, 695 4th Cir. 2007; Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 66 1st Cir. 2002;
Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 10th Cir. 2001.
Moreover, the Court in Bostock found that no ambiguity exists about how Title VIIs terms apply to the facts before iti.e., allegations of discrimination in employment against several individuals based on sexual orientation or gender identity. 140 S. Ct. at 1749.
After reviewing the text of Title IX and Federal courts interpretation of Title IX, the Department has concluded that the same clarity exists for Title IX. That is, Title IX prohibits recipients of Federal financial assistance from discriminating based on sexual orientation and gender identity in their education programs and activities. The Department also has concluded for the reasons described in this document that, to the extent other interpretations may exist, this is the best interpretation of the statute.
In short, the Department finds no persuasive or well-founded basis for declining to apply Bostocks reasoningdiscrimination because of
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