Title IX prohibits discrimination on the basis of sex. As discussed at our April Roundtable, some federal courts have indicated that Title IX prohibits discrimination on the basis of an individual’s perceived failure to conform to sexual stereotypes. The OCR April 2011 Dear Colleague Letter explicitly noted that Title IX prohibits gender-based harassment, including harassment based on sex stereotyping. OCR issued a guidance document on April 29, 2014 (“Questions and Answers on Title IX and Sexual Violence”) that plainly states “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.” (Answer B-2, p.5.)
Client Tip: Consider if your non-discrimination policy should include gender identity/expression; review institutional forms for unnecessary requests for gender identification; evaluate facilities uses and gender designation (e.g., locker rooms, restrooms); review institutional policies for references indicating bias on the basis of gender identity or sexual stereotyping.