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Do We Need to Change Our Non-Discrimination Policy?

By Dr. Sarah Flournoy

Several years ago, entities were advised to expand their non-discrimination policies to include gender as well as sex. More recently, entities have been encouraged to add sexual orientation and gender identity. According to the U. S. Supreme Court, these additions and distinctions are legally unnecessary.  

On June 15, 2020, the U.S. Supreme Court issued its opinion in Bostock v. Clayton Cty, Georgia, wherein the Court held “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 2020 WL 3146686. In doing so, the Court announced a plain language test: “if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” Id. In the case of a homosexual employee, the individual’s attraction to a man is only relevant to the employment decision if the employee is also a man. An individual’s gender identity as female is only relevant if the individual was born genetically male. With this expansive understanding of “sex” as used in Title VII of the Civil Rights Act of 1964, gender, gender identity, and sexual orientation all fall under the “sex” discrimination prohibition.

However, schools are governed by more than Title VII. Those receiving federal financial assistance must also abide by Title IX’s dictate that “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…” The Fifth Circuit has held that “Title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex” even if Title IX might also apply. Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995). Both acts protect individuals from discrimination on the basis of sex, and “any difference between their prohibitions of sex discrimination is not compelled by statutory language.” Id at 756. Therefore, while the Supreme Court declined to anticipate how its Bostock ruling might “sweep beyond Title VII to other federal or state laws that prohibit discrimination,” in the Title IX context, consistency with Bostock’s interpretation of “sex” is prudent. Bostock

Employers in Texas must also abide by the Texas Commission on Human Rights Act (“TCHRA”) which prohibits employment discrimination based on race, color, religion, sex, national origin, disability, and age. Texas courts have long held the TCHRA should be interpreted in a manner consistent with Title VII. Therefore, Bostock controls.

Having said that, entities, both private and public, are governed by their constituencies, whether voters electing a governing board or parents paying tuition. If there is a concern in your community, a conversation and updated written non-discrimination policy that does include these expanded categories may be worth consideration for practical, NOT legal, reasons. 

From a legal perspective under the recent Bostock opinion:

  • entities may not discriminate on the basis of sex, gender, gender identity or sexual orientation, but
  • non-discrimination policies do not need to be updated to specifically include gender, gender identify or sexual orientation because they are all encapsulated under “sex.” 

So “no,” your non-discrimination policy does not need to change.

If you have any questions regarding this or other policy topics, please contact the school law attorneys at Brackett & Ellis. 

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