Karlan's memo cited Bostock case -- which she helped argue before the Supreme Court -- as precedent. The memo provides a framework for federal agencies to enforce radical transgender ideology in schools under Title IX.
In March 2021, PDAAG Pamela Karlan authored a memo[1] to federal agency civil rights directors and general counsels about the application of the Supreme Court ruling in Bostock v. Clayton County – which was part-argued by Pam Karlan in front of the Supreme Court – to Title IX. The Supreme Court ruled in Bostock that employers cannot discriminate against employees on the basis of sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. Using a similar argument from Bostock, Karlan crafted a legal framework to outline how federal agencies should enforce Title IX with respect to LGBTQ people enrolled schools that receive Federal funding. From Karlan's memo:
…Executive Order 13988 sets out the Administration’s policy that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Citing the Supreme Court’s holding in Bostock that the prohibition on discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), covers discrimination on the basis of gender identity and sexual orientation, the Executive Order explains that Bostock’s reasoning applies with equal force to other laws that prohibit sex discrimination “so long as the laws do not contain sufficient indications to the contrary.” The Executive Order directs agencies to review other laws that prohibit sex discrimination, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation. We conclude that Title IX does.
Title IX provides that “[n]o 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…
…
…The Bostock Court concluded that Title VII’s prohibition of discrimination “because of” sex includes discrimination because of sexual orientation and transgender status, finding that when an employer discriminates against employees for being gay or transgender, “the employer must intentionally discriminate against individual men and women in part because of sex.” Bostock, 140 S. Ct. at 1740–43. The same reasoning supports the interpretation that Title IX’s prohibition of discrimination “on the basis of” sex would prohibit recipients from discriminating against an individual based on that person’s sexual orientation or transgender status. This interpretation of Title IX is consistent with the Supreme Court’s longstanding directive that “if we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.”…
Karlan specifically cited several court cases involving transgender students to justify her argument, including two cases that involved transgender students and bathroom usage:
…In the months following the Bostock decision, two appellate courts have reached the same conclusion, citing Bostock to support their holdings that Title IX protects transgender students from discrimination on the basis of gender identity. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g 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 reh’g en banc pending, No. 18-13592 (Aug. 28, 2020). Other circuits reached this conclusion before Bostock. See Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049–50 (7th Cir. 2017) (transgender boy was likely to succeed on his claim that school district violated Title IX by excluding him from the boys’ restroom); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221–22 (6th Cir. 2016) (per curiam) (school district that sought to exclude transgender girl from girls’ restroom was not likely to succeed on the claim because Title IX prohibits discrimination based on sex stereotyping and gender nonconformity)…
Karlan concluded the memo:
…After considering the text of Title IX, Supreme Court caselaw, 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…
…
… I hope this memorandum provides a starting point for your agencies to ensure the consistent and robust enforcement of Title IX, in furtherance of the commitment that every person should be treated with respect and dignity…
The American Accountability Foundation’s reading of Pamela Karlan’s memo is simple – Pamela Karlan provided a legal framework and justification for federal agencies to enforce the implementation of radical transgender policies at schools and universities. Further, the memo provided a shot across the bow to any school in America that dares to maintain that boys bathrooms are for boys and that girls bathrooms are for girls that those schools could risk having their federal funding cut off and could be targeted by the DOJ for litigation.
Sources:
[1] DOJ, Civil Rights Division, Memorandum: Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, March 26, 2021, By Pamela Karlan
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