Category: Civil Rights

The X Box: EEOC Announces Addition of Nonbinary Gender Option to Discrimination Charge

In recognition of Transgender Day of Visibility, today, the EEOC announced that it would be providing members of the LGBTQI+ community the option to select a nonbinary “X” gender marker when completing the voluntary self-identification questions that are traditionally part of the intake process for filing a charge of discrimination.

Specifically, in an effort to promote greater equity and inclusion, the EEOC will add an option to mark “X” during two stages of the intake and charge filing process. This addition will be reflected in the EEOC’s voluntary demographic questions relating to gender in the online public portal, which individuals use to submit inquires regarding the filing of a charge of discrimination, as well as related forms that are used in lieu of the online public portal. The nonbinary “X” gender marker will also be included in the EEOC’s modified charge of discrimination form, which will also include “Mx” in the list of prefix options.

Additionally, the EEOC will incorporate the CDC and NCHS’s proposed definition of “X,” which provides as follows: (1) “unspecified,” which promotes privacy for individuals who prefer not to disclose their gender identity; and (2) “another gender identity,” which promotes clarity and inclusion for those who wish to signify that they do not identify as male or female.

The EEOC’s announcement came shortly after the White House released a detailed Fact Sheet highlighting the steps the federal government has taken to address equality and visibility for Transgender Americans.

Article By Aretta K. Bernard and Stephanie Olivera Mittica of Roetzel & Andress LPA

For more labor and employment legal news, click here to visit the National Law Review.

©2022 Roetzel & Andress

Regulation by Definition: CFPB Broadens Definition of “Unfairness” to Rein in Discrimination

In a significant move, the CFPB announced on March 16 a revision to its supervisory operations to address discrimination outside of the traditional fair lending context, with future plans to scrutinize discriminatory conduct that violates the federal prohibition against “unfair” practices in such areas as advertising, pricing, and other areas to ensure that companies are appropriately testing for and eliminating illegal discrimination.  Specifically, the CFPB updated its Exam Manual for Unfair, Deceptive, or Abusive Acts or Practices (UDAAPs) noting that discrimination may meet the criteria for “unfairness” by causing substantial harm to consumers that they cannot reasonably avoid.

With this update, the CFPB intends to target discriminatory practices beyond its use of the Equal Credit Opportunity Act (ECOA) – a fair lending law which covers extensions of credit – and plans to also enforce the Consumer Financial Protection Act (CFPA), which prohibits UDAAPs in connection with any transaction for, or offer of, a consumer financial product or service.  To that end, future examinations will focus on policies or practices that, for example, exclude individuals from products and services, such as “not allowing African-American consumers to open deposit accounts, or subjecting African-American consumers to different requirements to open deposit accounts” that may be an unfair practice where the ECOA may not apply to this particular situation.

The CFPB notes that, among other things, examinations will (i) focus on discrimination in all consumer finance markets; (ii) require supervised companies to include documentation of customer demographics and the impact of products and fees on different demographic groups; and (iii) look at how companies test and monitor their decision-making processes for unfair discrimination, as well as discrimination under ECOA.

In a statement accompanying this announcement, CFPB Director Chopra stated that “[w]hen a person is denied access to a bank account because of their religion or race, this is unambiguously unfair . . . [w]e will be expanding our anti-discrimination efforts to combat discriminatory practices across the board in consumer finance.”

Putting it Into Practice:  This announcement expands the CFPB’s examination footprint beyond discrimination in the fair lending context and makes it likely that examiners will assess a company’s anti-discrimination programs as applied to all aspects of all consumer financial products or services, regardless of whether that company extends any credit.  By framing discrimination also as an UDAAP issue, the CFPB appears ready to address bias in connection with other kinds of financial products and services.  In particular, the CFPB intends to closely examine advertising and marketing activities targeted to consumers based on machine learning models and any potential discriminatory outcomes.

Article By Moorari Shah and A.J. S. Dhaliwal of Sheppard, Mullin, Richter & Hampton LLP

For more financial legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Broad Majority Decisions in Terrorist Torture and Abortion Law Cases Resolve Important State Secrets and Intervention Procedural Issues: SCOTUS Today

The Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

Zubaydah has been among the most closely watched cases on the Court’s docket. Full disclosure: I am a board member of the Center for Ethics and the Rule of Law at the University of Pennsylvania, which has advocated for the closing of the Guantanamo Bay Naval Base in Cuba, where Zubaydah is detained, and for the rejection of privilege claims as to non-classified information concerning torture. Though I am not surprised by the outcome in the case, it is contrary to what many human rights organizations have been advocating. The admixtures of Justices also provide interesting insights as to how they approach matters of privilege and national security.

In what likely will be one of the last majority opinions written by retiring Justice Stephen Breyer, and subject to various concurrences by Justices Thomas, Kagan, Kavanaugh, and Barrett, the Court reversed the Ninth Circuit and upheld the government’s assertion of state secrets privilege to deny Zubaydah’s attempt to subpoena two CIA contractors from whom he sought to obtain information for use in litigation in Poland concerning his torture at an alleged “black site” in that country. The state secrets privilege allows the government to bar the disclosure of information that, were it revealed, would harm national security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953). While the Ninth Circuit had accepted much of the government’s claim, it concluded that the privilege did not cover information about the location of the detention site, which the court believed had already been publicly disclosed. Indeed, it is clear from the record in the case that there has been substantial public discussion of such a detention site in Poland. However, although the government has concluded that the “enhanced interrogation” to which Zubaydah had been subjected constituted torture, the fact of its location in Poland has never been formally confirmed by the United States. The state secrets privilege permits the government to prevent disclosure of information when that disclosure would harm national security interests, such as “the risk of revealing covert operatives, organizational structure and functions, and intelligence-gathering sources, methods, and capabilities.” Here, Justice Breyer, in a textbook case displaying the essential role that he has played on the Court in pragmatically fashioning majorities to form consensus opinions in controversial cases, accepted the view that verifying the existence, or non-existence, of a CIA black site in Poland, falls within the state secrets privilege because confirmation or denial of the site’s existence and location, even if such information has already been made public through unofficial sources, would harm relations among foreign intelligence services vital to U.S. interests. The majority also noted that the locational information is not essential to the case that Zubaydah is attempting to make, but it also rejected the remand to consider issues of Zubaydah’s treatment that Justices Kagan, concurring, and Justice Gorsuch (interestingly, joined by Justice Sotomayor), dissenting, would have allowed. In a case where there is virtually no disagreement among the Justices as to what the law is, the decision comes down to a procedural formulation that Justice Breyer loosely compares to applying exemptions under the Freedom of Information Act. In any event, the majority held that, as an objective matter, the government’s assertions of privilege and national security risk satisfied its burden of responding to the demand for information.

Notwithstanding the great public interest that surrounds the debate and litigation concerning the efforts of various state legislatures to restrict abortion and to obtain the reversal or narrowing of Roe v. Wade, the Court’s 8-1 majority (only Justice Sotomayor dissented) held only that the Court would not adopt an arbitrary claims-processing rule barring a non-party intervener from taking over an appeal, especially under the conditions presented here. Having first concluded that neither a jurisdictional requirement nor a mandatory claims-processing rule barred consideration of the attorney general’s motion, the Court concluded that no statute or rule restricts the jurisdiction of a court of appeals or provides a general standard to apply in deciding whether intervention on appeal should be allowed. The one passing reference to intervention made in the Federal Rules of Appellate Procedure only concerns the review of agency action. Accordingly, with “respondents cit[ing] no provision that deprives a court of appeals of jurisdiction in the way they suggest, and no such supporting language can be found in 28 U. S. C. §2107, Federal Rules of Appellate Procedure 3 and 4, or any other provision of law. . . [the] Court refuses to adopt what would essentially be a categorical claims-processing rule barring consideration of the attorney general’s motion. When a non-party enters into an agreement to be bound by a judgment in accordance with the agreement’s terms, it is hard to see why the non-party should be precluded from seeking intervention on appeal if the agreement preserves that opportunity. Here, the attorney general reserved ‘all rights, claims, and defenses . . . in any appeals arising out of this action.’ That easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari.”

Justice Sotomayor’s dissent, like the cheese, stands alone. She argues that every case should have a certain end point, and one should be applied here. One wonders if she would entertain a similar opinion in a case like this but where the plaintiffs are appealing. In any event, all of the other Justices are unified by the absence of any textual limitation on their jurisdiction to entertain a motion to intervene on appeal and the reasonable justification made for it by the state attorney general. Where Justice Alito found a constitutional basis for this conclusion and Justice Kagan would only have relied upon statutory interpretation, the vast majority of the Court agreed on the procedural regime adopted irrespective of the fact that there likely would be considerable disagreement about the constitutionality of the statute at issue in the underlying litigation.

©2022 Epstein Becker & Green, P.C. All rights reserved.
For more articles about Supreme Court cases, visit the NLR Litigation section.

Bouncing Back with Justice Leah Ward Sears [PODCAST]

Former Georgia Supreme Court Chief Justice Leah Ward Sears had to overcome multiple systemic barriers including racism and misogyny, but a personal setback – divorce – is something that profoundly shaped her. In this episode of Bouncing Back, Justice Sears shares with Rebecca Glatzer how she came to terms with her divorce and to accept that she could not control—or fix—everything in her life.

With decades of experience as an attorney, a jurist and an elected official, Justice Leah Ward Sears, a Partner in the Litigation Section of Smith, Gambrell & Russell, LLP, brings a powerful combination of strategy, analytical thinking and tactical action that gives her clients a compelling edge in complex litigation, appeal, and arbitration and mediation.

Recognized as one of Georgia’s leading legal luminaries and role models, Ms. Sears broke numerous barriers in her swift rise to the highest court in Georgia. When she was elected to the Superior Court of Fulton County, she became the first woman to ever serve on that court. Later she was appointed, and then elected, to serve as a Justice on the Supreme Court of Georgia — again, the first woman as well as the youngest jurist ever on that court.

She rose to Presiding Justice and in 2005 her colleagues elevated her to Chief Justice of the Georgia Supreme Court, where she served until retiring from the bench in 2009. During her tenure at the Georgia Supreme Court, Ms. Sears spearheaded an effort to establish the Georgia Office of Dispute Resolution, which is a policy-making body under the auspices of the Georgia Supreme Court that oversees the development of court-connected alternative dispute resolution (ADR) programs in Georgia. She also chaired the Judicial Council of Georgia and was a member of the Board of Directors of the National Conference of Chief Justices.

Since returning to private practice, Ms. Sears has concentrated on prosecuting appeals in both the state and federal courts in many jurisdictions across the United States. This often means embedding with the trial team to develop and execute pretrial and trial strategy, build credible evidence, and begin positioning for an appeal while the trial is underway by preserving evidence and proactively looking for narrowly focused issues at trial that will help protect a hard-fought victory or overturn an unfavorable outcome.

Ms. Sears earned an advanced degree (LLM) in Appellate Judicial Studies from the University of Virginia Law School, and she completed a Juris Doctorate (JD) at Emory University School of Law. She also holds a Bachelor of Science degree from Cornell University.

©2022 Major, Lindsey & Africa, an Allegis Group Company. All rights reserved.
For more articles about legal leaders, visit the NLR Civil Rights type of law page.

U.S. House and Senate Reach Agreement on Uyghur Forced Labor Prevention Act

On December 14, 2021, lawmakers in the House and Senate announced that they had reached an agreement on compromise language for a bill known as the Uyghur Forced Labor Prevention Act or “UFLPA.”  Different versions of this measure passed the House and the Senate earlier this year, but lawmakers and Congressional staff have been working to reconcile the parallel proposals. The compromise language paves the way for Congress to pass the bill and send it to President Biden’s desk as soon as this week.

The bill would establish a rebuttable presumption that all goods originating from China’s Xinjiang region violate existing US law prohibiting the importation of goods made with forced labor. The rebuttable presumption would go into effect 180 days after enactment.  The compromise bill would also require federal officials to solicit public comments and hold a public hearing to aid in developing a strategy for the enforcement of the import ban vis-à-vis goods alleged to have been made through forced labor in China.

This rebuttable presumption will present significant challenges to businesses with supply chains that might touch the Xinjiang region.  Many businesses do not have full visibility into their supply chains and will need to act quickly to map their suppliers and respond to identified risks.  Importers must present detailed documentaton in order to release any shipments that they think were improperly detained, a costly and time-consuming endeavor.  Notably, the public comment and hearing processes will guide the government’s enforcement strategy, providing business stakeholders an opportunity to contribute to an enforcement process that could have implications for implementation of the import ban more broadly.

China’s Xinjiang region is a part of several critical supply chains, lead among them global cotton and apparel trade, as well as solar module production.  According to the Peterson Institute:

Xinjiang accounts for nearly 20 percent of global cotton production, with annual production greater than that of the entire United States. Its position in refined polysilicon—the material from which solar panels are built—is even more dominant, accounting for nearly half of global production. Virtually all silicon-based solar panels are likely to contain some Xinjiang-sourced silicon, according to Jenny Chase, head of solar analysis at Bloomberg New Energy Finance. If signed into law, the bill will send apparel producers and the US solar industry scrambling to find alternative sources of supply and prices are bound to increase.

Article By Ludmilla L. Kasulke and Rory Murphy of Squire Patton Boggs (US) LLP

For more legal news and legislation updates, click here to visit the National Law Review.

© Copyright 2021 Squire Patton Boggs (US) LLP

Stopping Harassment Before it Starts Includes Dealing with Bullying

Toxic workplaces have been making plenty of headlines lately.  Recent stories about toxic workplaces – and some of the fallout – have spanned all sorts of industries, from the government to video gaming to professional sports.

What makes a workplace toxic?  There’s probably an academic definition (or two), but what’s intended for the purposes of this article is behavior that is intimidating, demeaning or belittling, and is either severe, ongoing or both.  It typically involves someone taking advantage of a power difference, real or perceived.  The power difference may come from the official position or title, it may come from a long tenure with the organization, it may come from namedropping or sense of connections to power within the organization, and it may come from being a rainmaker, superstar, or someone identified as high potential.  The person or group on the receiving end lacks such power and often receives a message, not always in so many words, that any complaint will not be believed or taken seriously.  Critically, there are usually instances of demonstrating poor behavior in front of others, without intervention or acknowledgment, signaling the behavior is accepted.

A toxic workplace can be especially difficult to deal with because rude (or worse) behavior, unless tied to a protected characteristic, is not necessarily harassment or discrimination under the law.   Even the Supreme Court says companies are not required to be manners police, and most certainly do not want to be tasked with managing the manners of our coworkers.  After all, we are all capable of an off day when we are not as kind or considerate as we aspire to be.  We hesitate to call out the poor behavior in someone else, either to avoid embarrassment or confrontation, because it’s not a good time and then it’s too late, or because it could be us the next time.  Unfortunately, this tolerance likely contributes to a bigger problem, allowing the poor behavior to grow into illegal harassment.

The problem is not new.  In 2016, the EEOC reported that training to stop or prevent harassment was largely missing the mark.  Among other things, the EEOC suggested training focus more on preventing poor behavior(s) that tends to escalate into harassment, namely bullying.

With that suggestion in mind, what should be done to improve processes? What can you do?

  • Make sure your training programs address behaviors that are common precursors to harassment or discrimination (either as part of EEOC training or something separate).
  • Consider whether your complaint process would allow or even encourage complaints that do not fit the typical paradigm of unlawful discrimination or harassment.  If not, consider broadening your process or developing something different that can help address concerns before they become formal complaints.  (And be prepared to hear and listen more.)
  • Consider how to ensure appropriate confidentiality but also have a way to recognize a pattern of poor behavior attributed to an individual or group.
  • Don’t communicate tolerance as a bystander.  If you recognize someone is uncomfortable, intervene.  Intervention does not have to be an admonition or correction, it can simply be a diversion.
  • Foster dialogue about how to improve, starting with yourself and those comfortable with you. Are you quick to apologize if you were short with someone? If you made a remark or told a joke that someone that was too stereotypical or otherwise offensive, would someone tell you they had been uncomfortable? To be clear, you probably are not the problem. But more dialogue means more opportunity for everyone to improve and recognize what or who might be a real problem.

These are just a few suggestions and none of them are very easy to accomplish.  But, they do not cost much and may save a lot of money. No one wants to deal with the publicity or litigation that often comes with making the headlines for having a toxic workplace. But, the more common costs are low productivity and high turnover. It’s worth another look.

© 2021 Foley & Lardner LLP
For more articles about employee rights in the workplace, visit the NLR Labor & Employment section.

Privacy Tip #309 – Women Poised to Fill Gap of Cybersecurity Talent

I have been advocating for gender equality in Cybersecurity for years [related podcast and post].

The statistics on the participation of women in the field of cybersecurity continue to be bleak, despite significant outreach efforts, including “Girls Who Code” and programs to encourage girls to explore STEM (Science, Technology, Engineering and Mathematics) subjects.

Women are just now rising to positions from which they can help other women break into the field, land high-paying jobs, and combat the dearth of talent in technology. Judy Dinn, the new Chief Information Officer of TD Bank NA, is doing just that. One of her priorities is to encourage women to pursue tech careers. She recently told the Wall Street Journal that she “really, really always wants to make sure that female representation—whether they’re in grade school, high school, universities—that that funnel is always full.”

The Wall Street Journal article states that a study by AnitaB.org found that “women made up about 29% of the U.S. tech workforce in 2020.”  It is well known that companies are fighting for tech and cybersecurity talent and that there are many more open positions than talent to fill them. The tech and cybersecurity fields are growing with unlimited possibilities.

This is where women should step in. With increased support, and prioritized recruiting efforts that encourage women to enter fields focused on technology, we can tap more talent and begin to fill the gap of cybersecurity talent in the U.S.

Article By Linn F. Freedman of Robinson & Cole LLP

For more privacy and cybersecurity legal news, click here to visit the National Law Review.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

Federal Judge Blocks Enforcement of Tennessee’s Bathroom Signage Law

On July 9, 2021, a federal district court in Nashville, Tennessee, granted a preliminary injunction, halting enforcement of a new Tennessee law on bathroom signage. That law mandates that businesses post specific signs next to their public bathrooms, if they allow people to use the bathroom that conforms with their gender identity. The first-of-its-kind law went into effect on July 1, 2021. It requires that any

public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.

The law specifies the size, font, color, and content of the sign, which must state the following:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM

The act gives any entity or business that is in violation of its edict 30 days from being “notified that it is not in compliance” to post the required signage, after which “action” may be “taken against the entity or business.” Failure to remedy the violation would constitute a Class B criminal misdemeanor.

Two businesses in Nashville and Chattanooga have filed a lawsuit challenging the law. They assert that being forced to place these signs on their premises violates their rights under the First Amendment of the U.S. Constitution. Both argue that the act requires them to engage in a form of speech that they find offensive and that is contrary to their beliefs on diversity, inclusion, and mutual respect.

The Court’s Analysis

District Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee agreed with businesses, holding that they were likely to succeed in their lawsuit. When granting the preliminary injunction precluding the enforcement of the law, Judge Trauger did not mince words. She noted that the Supreme Court of the United States has held that “‘[c]ompelling individuals to mouth support for views they find objectionable violates [a] cardinal constitutional command’ unless justified by the strongest of rationales.”

Judge Trauger wrote that “[p]articularly repugnant to the First Amendment is when the government forces a private party to voice the government’s compelled message, not merely in private or in direct dealings with government itself, but ‘in public,’ as an involuntary ‘instrument for fostering public adherence to an ideological point of view.’” Judge Trauger found that the government had failed to plausibly articulate any legitimate rationale for the law, let alone one that would survive strict-scrutiny review.

Judge Trauger concluded her memorandum opinion by observing that

“[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist.

(Internal citations omitted.)

Key Takeaways

The court’s ruling provides a measure of clarity to Tennessee business owners and managers who were concerned about compliance with the law and worried about criminal liability for violating its mandates. Since the Tennessee General Assembly’s passage of bathroom signage legislation at the conclusion of the 2021 session, and Tennessee Governor Bill Lee’s signing the legislation into law, employers had expressed concern regarding the potential consequences resulting from noncompliance with the law. Some employers had expressed dismay at the effect that such a law could have on their employees who are members of the LGBTQ community. For the time being at least, while this case works its way through the courts, it appears that Tennessee businesses may have a reprieve from enforcement of the law.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on bathroom laws, visit the NLRCivil Rights section.

Making the Roster: Conflicting Title IX Interpretations Present Challenges for Transgendered Athlete Participation

Nationwide, college athletic programs are facing a dilemma: can they roster transgendered athletes on teams that conform with their gender identity? The answer is: it depends on where the team is located. In recent years, presidential administrations, Congress, states, and federal courts have weighed in on this issue. School athletics must not only take into account the guidelines and bylaws of the NCAA, but also must consider the federal guidance of the Department of Justice and the Department of Education, the recent rash of state laws that prohibit the participation of trans athletes in sports, and judicial decisions that interpret federal and state law. This is a daunting task as the four sets of rules (NCAA, federal law, state law, and judicial decisions) appear to be in conflict in interpreting the right to roster transgendered athletes to conform to the athletes’ gender identity.  These conflicting policies create risk for athletic departments of colleges and universities.

NCAA Guidelines

The NCAA has had a trans-inclusion policy in place for years, predating the current legal debate. The NCAA bylaws allow for transgendered athletes to participate on teams that conform with their gender identity if certain conditions are met regarding hormone therapy. Additionally, in August 2011, the NCAA issued guidelines (the “NCAA Guidelines”) on trans-inclusive policies for intercollegiate athletic teams. The NCAA Guidelines’ purpose was “to provide guidance to NCAA athletic programs about how to ensure transgendered student-athletes fair, respectful, and legal access to collegiate sports teams based on current medical and legal knowledge.” The NCAA Guidelines, among other things, advise institutions that “all members of the school community should receive information about transgender identities, non-discrimination policies, the use of pronouns and chosen names, and expectations for creating a respectful school and team climate for all students, including transgender students.” Further, they recommend that transgendered athletes be afforded access to the locker room and other facilities in accordance with their gender identity and that transgender student-athletes should be assigned hotel rooms according to their identified gender in the same manner that other members of the team are assigned rooms. The NCAA Guidelines’ purpose is to treat transgendered athletes the same way as their cisgendered teammates.

The NCAA recently reaffirmed its trans-inclusive policies, partly in response to the ongoing legal battles, and stated that it “regularly assesses its practices related to transgender participation and solicits feedback” from not only medical community experts and inclusion thought leaders, but also current and former student-athletes.  The NCAA included an educational session on transgender and nonbinary student-athlete participation in its annual Inclusion Forum, which took place June 2–4, 2021.

Federal Law and the Biden Administration’s Trans-Inclusive Policies

Titles VII and IX protect against sex discrimination.  Until recently, however, the scope of that protection to gay and transgender people was uncertain as court decisions were mixed and the previous administration did not include gay and transgender persons within the scope of sex discrimination under federal law.

In June 2020, the United States Supreme Court clarified that homosexual and transgender individuals are entitled to the protections of Title VII.[1]  In an affirmance of the Supreme Court’s Bostock decision, on his first day in office, President Biden issued an Executive Order, entitled, Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation. Among other declarations, the Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” This Executive Order changed the federal government’s position on transgender rights from that which existed under the prior administration.

Since January 21, 2021, the Department of Justice’s Civil Rights Division issued a memo to all federal agencies extending the protection to gay and transgender people under Title IX as well.  The Civil Rights Division wrote that based on the Bostock decision, Title IX also should be read as protecting the status of gay and transgender students. In its memo, the Division wrote: “After considering the text of Title IX, Supreme Court case law, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”

On April 6, 2021, the Department of Education’s Office for Civil Rights, which is responsible for enforcing Title IX, announced it would undertake a comprehensive review of its Title IX regulations.  It announced that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence and including discrimination on the basis of sexual orientation or gender identity.”

On June 16, 2021, the Office for Civil Rights issued a Notice of Interpretation, which states that the Department of Education interprets Title IX’s prohibition on discrimination to include discrimination on the basis of sexual orientation and gender identity and based that interpretation on the Supreme Court’s decision in Bostock. The Office for Civil Rights concluded that such interpretation “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.”[2]

Recent Anti-Transgender State Legislation

Transgendered athletes also face legal challenges on a state level. Eight states have passed laws prohibiting women from participating in sports outside of their birth gender[3] and over 30 states have introduced some form of bill that prohibits transgendered athletes from participating on single-sex sports teams. For example, in Arkansas, Governor Asa Hutchinson signed Senate Bill 354, which bans transgender women and girls from participating in school sports. The decision comes two weeks after Mississippi Governor Tate Reeves signed a similar bill, which will go into effect July 1, 2021. Arkansas Attorney General Leslie Rutledge stated, “We don’t want common sense to be overshadowed by so-called political correctness, and this bill will ensure the integrity of girls and women in sports.” Florida’s law would require any athlete whose biological sex is disputed to have a health official examine the athlete’s reproductive anatomy.

North Carolina’s bill, known as the “Save Women’s Sports Act,” would prevent transgendered women from playing on women’s sports teams at public schools or universities as well. Texas’s legislature took a similar approach, introducing a bill that would prohibit transgendered athletes from participating on single-sex sports teams in public high schools, colleges, and universities. This week, Texas’ Governor called the legislature back into special session to vote on this bill.

Supreme Court’s Decisions on Sex Discrimination

In Bostock, the United States Supreme Court held that homosexual and transgender individuals are a protected class under Title VII. Bostock came to the Court as a consolidation of three Title VII appeals—two cases of which involved employees being fired for being gay and the third involved the firing of an employee who intended to undergo gender affirmation surgery. In a 6–3 ruling, the Supreme Court found that homosexual and transgender individuals were afforded “protected class” status under Title VII.  It found that the employers’ conduct constituted illegal discrimination. The majority, analyzing Title VII’s language that prohibits discrimination on the basis of sex, concluded that sex was so intertwined with sexual orientation and gender identity, that any discrimination based on sexual orientation or gender identity is necessarily, in part, discrimination based on sex.[4]

The majority made clear that its definition of “sex” only should be applied to Title VII and employment matters. However, the Bostock ruling does seem to open the door to similar interpretation of Title IX. Such application might have, as Justice Alito mused in his dissenting opinion, unintended consequences, especially for college and university Athletic Departments.

This week, the Supreme Court determined that there are legitimate religious objections to the treatment of lesbian, gay, bisexual, and transgender people and these objections are entitled to First Amendment protection against statutes to the contrary.  In Fulton v. City of Philadelphia, ___ S.Ct. ___, 2021 WL 2459253 (June 17, 2021), the Court unanimously held that Philadelphia’s anti-discrimination laws (which were included in its foster care contracts) did not apply to a Catholic social services agency’s policy to exclude same-sex couples from foster placement. The Court determined the agency’s religious beliefs were entitled to First Amendment protection from Philadelphia’s local laws.  It held that the Catholic-based foster care agency was allowed to maintain its contract with the city and continue to bar same-sex couples from fostering.

While the Court focused on the wording of Philadelphia’s anti-discrimination ordinance in the Fulton decision, it may be read to exempt faith-based opposition to laws precluding discrimination against gay and transgendered individuals. Indeed, future rulings may allow religious colleges and universities to bar transgendered student-athletes.

Federal Courts Take Up the Debate

Other federal courts have decided cases involving transgendered athletes’ rights.[5]  In Hecox v. Little, two transgender women sued the state of Idaho over its Fairness in Women’s Sports Act, which prohibits transgendered women from competing on women’s sports teams at public schools. The plaintiffs sought to apply Title IX anti-discrimination protections to declare the state law unconstitutional. The federal judge granted the plaintiffs’ preliminary injunction, temporarily prohibiting the law from becoming effective. The Ninth Circuit is now deliberating the constitutionality of the state law, following Idaho’s appeal of the district court’s injunction.

And, in Soule v. Connecticut, some cisgendered female high school athletes in Connecticut sued the Connecticut Interscholastic Athletic Conference for violating Title IX.  The plaintiffs claimed the conference’s policies allowed transgendered athletes to unfairly dominate track and field events when those events were meant for cisgendered female competitors.  The Trump administration, which issued guidance that interpreted Title IX in line with the Connecticut plaintiffs’ arguments, supported the lawsuit. The court dismissed the Connecticut action on the ground of mootness.  The court held that because the transgendered athletes in question had already graduated from high school and would not be participating in CIAC events, there was nothing left to decide. The court did not decide the case on the merits.  The ACLU issued a statement that it intended to challenge any legislation that prohibited transgendered athletes from participating in interscholastic sports, so future litigation is likely.

Conclusion

Colleges and universities face risks and opportunities with regard to transgendered athletes. The NCAA by-laws and guidelines permit transgendered athletes to compete on teams that conform with their gender identity.  The federal government has issued administrative guidance, Executive Orders, and a Notice of Interpretation that would preclude institutions from discriminating against transgendered individuals, under Title VII or Title IX.  A number of states—eight and increasing —have enacted legislation that not only conflicts with federal guidance but also limits the rights of transgendered athletes. While courts so far have found restrictions on gay and transgendered persons to violate Title VII and Title IX, the United States Supreme Court may have limited the applicability of those decisions where there is a religious issue.  In short, courts are struggling to balance equal protection and Titles VII and IX guarantee with other constitutional protections.  And, of course, colleges and universities need to be able to articulate policies that are compliant with the law and their core values.

The resolution of these issues has real consequences on colleges and universities.  The resolution may affect the institution’s core values and donations.  It also may, in the athletic department, affect the ability to recruit and retain athletes.  The institution may find that its policies may conflict with those of the NCAA, and thereby risk eligibility or media rights revenues.   And, the institution’s policies may put it at the center of disagreements between its state and the federal government.

[1] See Bostock v. Clayton County, 140 S.Ct. 1731 (2020) and the discussion in section 4 below.

[2] Notably, the Executive Orders, DOJ Memo, and the Notice of Interpretation are all silent as to any potential enforcement actions the Biden administration and its agencies would take against non-compliant institutions. Colleges and universities should be on the lookout for further guidance from the Department of Education on compliance with its Title IX interpretation—and consequences of noncompliance.

[3] Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee and West Virginia.

[4] In a dissent, Justice Alito pondered the effect the majority’s ruling would have on other matters involving sex discrimination, specifically whether the Court’s interpretation of Title VII—which focuses on employment—would impact Title IX, which applies to sex discrimination in educational and athletic programs.

[5] Hecox v. Little, 479 F.Supp.3d 930 (D. Idaho 2020); Soule v. Conn. Ass’n of Pub. Sch.,  No. 3:20-CV-00201-RNC, 2021 WL 1617206 (D. Conn. April 25, 2021) .

2021 Goulston & Storrs PC.
For more articles on Title IX, visit the NLR Public Education & Services section.

U.S. Department of Education Says Title IX Protects LGBTQ Students

Yesterday, the Office of Civil Rights (OCR) for the U.S. Department of Education released a new Notice of Interpretation clarifying the Department’s position that Title IX prohibits discrimination against gay and transgender students. The interpretation, applicable to both colleges and universities and K-12 institutions which accept federal funding, follows the U.S. Supreme Court’s holding in Bostock v. Clayton County that Title VII prohibits workplace discrimination based on sexual orientation or gender identity. OCR’s announcement is a departure from the previous administration’s position, which declined to extend Title IX’s protections to transgender students. While the Notice does not have the effect of law, it signals OCR’s intentions as it enforces Title IX going forward. “We just want to double down on our expectations,” said DOE Secretary Miguel A. Cardona. “Students cannot be discriminated against because of their sexual orientation or their gender identity.”

OCR’s Notice states that its interpretation is meant to align Title VII and Title IX, acknowledging that courts regularly rely on interpretations of Title VII to inform decisions based on Title IX. The interpretation also follows a March 2021 memorandum from the U.S. Department of Justice, which similarly interpreted the Bostock decision to apply to Title IX. OCR’s announcement has been welcomed by many schools, which had been forced to juggle conflicting Title IX and Title VII standards in the wake of the Bostock decision. Still others have questioned the interpretation’s impact, including schools in locations where the interpretation is in conflict with state or local law. And OCR’s Notice expressly acknowledges that the interpretation does not change the Title IX exemption for education institutions controlled by a religious organization to the extent that the law is not consistent with the organization’s religious tenets.

OCR’s announcement comes during the summer months—as many schools are updating their policies and procedures—and while many institutions anxiously await OCR’s announcement of further guidance and regulations related to Title IX, particularly regarding further guidance regarding the 2020 Title IX regulations. The interpretation also leaves open several key questions including, for example, its impact on single sex institutions or campus affinity groups or how broadly the department will define gender identity. But as schools prepare for the 2021 fall semester, administrators should be ready to address allegations of discrimination based on sexual orientation or gender identity as part of Title IX compliance efforts.

OCR’s Notice of Interpretation may be found in its entirety here.

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For more articles on the OCR, visit the NLRCivil Rights section.