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Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations . . . sex under Title VII encompasses discrimination based on sexual orientation and gender identityto Title IXs parallel prohibition on sex discrimination in federally funded education programs and activities.
b. Additional case law recognizes that the reasoning of Bostock applies to Title IX and that differential treatment of students based on gender identity or sexual orientation may cause harm.
Numerous Federal courts have relied on Bostock to recognize that Title IXs prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.
See, e.g., Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 616 4th Cir.
2020, as amended Aug. 28, 2020, rehg en banc denied, 976 F.3d 399 4th Cir. 2020, petition for cert filed, No. 20
1163 Feb. 24, 2021; Adams v. Sch. Bd.
of St. Johns Cnty., 968 F.3d 1286, 1305
11th Cir. 2020, petition for rehg en banc pending, No. 1813592 Aug. 28, 2020; Koenke v. Saint Josephs Univ., No. CV 194731, 2021 WL 75778, at 2
E.D. Pa. Jan. 8, 2021; Doe v. Univ. of Scranton, No. 3:19CV01486, 2020 WL
5993766, at 11 n.61 M.D. Pa. Oct. 9, 2020.
The Department also concludes that the interpretation set forth in this document is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination. As numerous courts have recognized, a schools policy or actions that treat gay, lesbian, or transgender students differently from other students may cause harm. See, e.g., Grimm, 972 F.3d at 61718
describing injuries to a transgender boys physical and emotional health as a result of denial of equal treatment;
Adams, 968 F.3d at 130607 describing emotional damage, stigmatization and shame experienced by a transgender boy as a result of being subjected to differential treatment; Whitaker ex rel.
Whitaker v. Kenosha Unified Sch. Dist.
No. 1 Bd. of Educ., 858 F.3d 1034, 104446, 104950 7th Cir. 2017
describing physical and emotional harm to a transgender boy who was denied equal treatment; Dodds v. U.S.
Dept of Educ., 845 F.3d 217, 22122
6th Cir. 2016 describing substantial and immediate adverse effects on the daily life and well-being of an elevenyear-old transgender girl from denial of equal treatment; Doe, 2020 WL
5993766, at 13 describing harassment and physical targeting of a gay college student that interfered with the students educational opportunity;
Harrington ex rel. Harrington v. City of Attleboro, No. 15CV12769DJC, 2018

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WL 475000, at 67 D. Mass. Jan. 17, 2018 describing wide-spread peer harassment and physical assault of a lesbian high school student because of stereotyping animus focused on the students sex, appearance, and perceived or actual sexual orientation.
c. The U.S. Department of Justices Civil Rights Division has concluded that Bostocks analysis applies to Title IX.
The U.S. Department of Justices Civil Rights Division issued a Memorandum from Principal Deputy Assistant Attorney General for Civil Rights Pamela S. Karlan to Federal Agency Civil Rights Directors and General Counsels regarding Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972
Mar. 26, 2021, https www.justice.gov/
crt/page/file/1383026/download.
The memorandum stated that, after careful consideration, including a review of case law, the Division has determined that the best reading of Title IXs prohibition on discrimination on the basis of sex is that it includes discrimination on the basis of gender identity and sexual orientation.
Indeed, the Division ultimately found nothing persuasive in the statutory text, legislative history, or caselaw to justify a departure from Bostocks textual analysis and the Supreme Courts longstanding directive to interpret Title IXs text broadly.
III. Implementing This Interpretation Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department. As with all other Title IX complaints that OCR receives, any complaint alleging discrimination based on sexual orientation or gender identity also must meet jurisdictional requirements as defined in Title IX and the Departments Title IX regulations, other applicable legal requirements, as well as the standards set forth in OCRs Case Processing Manual, www.ed.gov/
ocr/docs/ocrcpm.pdf.2
Where a complaint meets applicable requirements and standards as just described, OCR will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities. This includes allegations of individuals being 2 Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organizations religious tenets. See 20
U.S.C. 1681a3.

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harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity. OCR
carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender;
intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.
While this interpretation will guide the Department in processing complaints and conducting investigations, it does not determine the outcome in any particular case or set of facts. Where OCRs investigation reveals that one or more individuals has been discriminated against because of their sexual orientation or gender identity, the resolution of such a complaint will address the specific compliance concerns or violations identified in the course of the investigation.
This interpretation supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IXs jurisdiction over discrimination based on sexual orientation and gender identity. This interpretation does not reinstate any previously rescinded guidance documents.
Accessible Format: On request to the contact person listed under FOR FURTHER
INFORMATION CONTACT, individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format RTF or text format txt, a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.
Electronic Access to This Document:
The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format PDF. To use PDF you must have Adobe Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov.
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