Potential Application of Bostock v. Clayton County to Other Civil Rights Statutes

July 2, 2021 R46832

Potential Application of Bostock v. Clayton
July 2, 2021
County to Other Civil Rights Statutes
Christine J. Back
Last year, the Supreme Court ruled in Bostock v. Clayton County that a statutory
Legislative Attorney
provision prohibiting discrimination in the workplace “because of … sex” also forbids

employers from making employment decisions because of an employee’s sexual
Jared P. Cole
orientation or gender identity. In reaching that conclusion, Justice Gorsuch’s majority
Legislative Attorney
opinion focused on the statutory text at issue—Section 703(a)(1) of Title VII of the Civil

Rights Act of 1964—and the statute’s “but for” causation standard. Given these aspects
of the statute, the majority opinion reasoned that because discrimination based on sexual

orientation or gender identity necessarily involves consideration of an individual’s sex,
such actions are unlawful under Title VII’s prohibition of discrimination “because of … sex.” While Bostock
addressed Title VII, the decision has sparked questions about the potential application of the opinion’s reasoning
to other statutes. Numerous federal laws prohibit sex discrimination in contexts outside of employment, such as in
housing and the extension of credit. In addition, courts have sometimes looked to Title VII precedent to either
inform or sometimes distinguish the operation of other federal antidiscrimination statutes.
The Biden Administration has already taken actions responsive to the Bostock decision relating to agencies’
enforcement and interpretation of civil rights statutes. The White House issued an Executive Order (EO) on the
day of President Biden’s inauguration, stating that laws that prohibit sex discrimination “prohibit discrimination
on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the
contrary.” A number of agencies have already taken actions responsive to the EO, including the Department of
Education, the Department of Justice, and the Department of Health and Human Services.
Federal courts have also begun to address whether Bostock’s reasoning may be applied to interpret other statutory
provisions that prohibit sex discrimination, apart from Title VII. Importantly, the Court’s reasoning in Bostock
focused on the specific text of Section 703(a)(1) in Title VII, operating under a “but for” causation standard. The
potential application of Bostock may be most immediately relevant to statutes with text and phrasing similar to
that Title VII provision, and which also incorporate a “but for” causation standard. It is less clear how Bostock
might apply to statutory provisions that incorporate another causation standard, or which phrase their prohibitions
differently than Section 703(a)(1). Other considerations may also shape whether a federal court applies the
judicial interpretation of one statutory provision to another, including differences in the context and operation of
each statute’s mandates, as well as case law construing a particular statute (including whether the Supreme Court
has looked to Title VII to inform its interpretation of the other statute).
While the reasoning of Bostock could have implications for certain statutes, Title IX of the Education
Amendments of 1972 has already received some judicial analysis in light of the Court’s decision, and is the
subject of a recently-issued interpretation notice from the Department of Education.
Among potential legislative approaches, Congress could amend current law to either expressly include or exclude
sexual orientation and gender identity as characteristics covered under particular statutes, or enact new standalone
legislation addressing protections and prohibitions concerning sexual orientation or gender identity.
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link to page 22 Potential Application of Bostock v. Clayton County to Other Civil Rights Statutes

Introduction
Last year, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights
Act of 1964 (Title VII) forbids employers from firing an employee because of the employee’s
sexual orientation or gender identity.1 Because the Court reached this conclusion when
interpreting Title VII’s provision prohibiting discrimination “because of . . . sex” in the
workplace, Bostock immediately raised questions about the scope and reach of other federal
antidiscrimination statutes that also bar sex-based discrimination.2 This report examines whether
and how the Supreme Court’s decision in Bostock might apply to other federal statutes that also
bar sex discrimination in the absence of legislative amendments to those statutes.
This report begins with a discussion of Bostock itself, including the emphasis the Court placed on
the statutory text of Title VII and the “but for” causation standard that the Court applied in the
case. The report continues by examining how the Biden Administration has understood the reach
of the decision’s reasoning in the context of agency enforcement of civil rights statutes.
The report then turns to an analysis of what considerations courts might examine if asked to apply
Bostock to other civil rights statutes. The two primary emphases in the Bostock decision—the text
of Title VII operating under a “but for” causation standard—suggest that an extension of the
Supreme Court’s reasoning to analyze other statutes would similarly consider a statute’s text and
causation standard(s). A statute’s causation standard—if more stringent or more lenient than the
“but for” standard—may have implications for whether Bostock’s reasoning can be applied to
interpret that statute’s scope.3 Apart from causation, other considerations may also shape how
courts analyze the potential applicability of Bostock to other statutes.
This report then considers the potential application of Bostock to Title IX of the Education
Amendments of 1972, which bars sex discrimination by recipients of federal financial assistance
in education programs. There has been significant attention in the wake of Bostock over how its
reasoning applies to the interpretation of Title IX, with the Department of Education issuing an
interpretative guidance in June 2021 on the matter. Meanwhile, federal courts have also begun to
address questions concerning Bostock’s applicability to Title IX. Accordingly, this report
examines factors that courts might consider when determining whether to apply Bostock to
interpret Title IX. These factors include Supreme Court precedent that has considered Title IX in
relation to Title VII, as well as federal appellate court precedent addressing causation under Title
IX. This report also discusses two recent federal appellate decisions that have applied Bostock to
Title IX in cases challenging school bathroom policies alleged to have discriminatorily excluded
students based on gender identity. The report closes with a discussion of potential legislative
considerations for Congress, should it choose to legislate in this area.
Bostock v. Clayton County
Bostock v. Clayton County consolidated three cases from federal appeals courts applying Title
VII’s prohibition on sex discrimination in the workplace; two focused on sexual orientation, and

1 See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).
2 See, e.g., Julie Moreau, Supreme Court’s LGBTQ Ruling Could Have ‘Broad Implications,’ Legal Experts Say, NBC
NEWS (June 23, 2020), https://www.nbcnews.com/feature/nbc-out/supreme-court-s-lgbtq-ruling-could-have-broad-
implications-legal-n1231779.
3 See infra “The Potential Role of Causation in Other Statutes.”
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one centered on gender identity.4 The plaintiffs alleged that their employers fired them because of
their sexual orientation or gender identity and, in doing so, violated Title VII by discriminating
against them “because of . . . sex.”5 Leading up to the decision in Bostock, the question of
whether Title VII prohibits employment discrimination based on sexual orientation had split
lower federal courts.6 Likewise, courts reached divergent conclusions about whether Title VII
protects transgender employees from employment discrimination.7 This judicial debate arose in
part because the text of Title VII does not explicitly address discrimination based on sexual
orientation or gender identity.
The Bostock Court held by a 6-3 vote that Title VII’s prohibition of discrimination “because
of…sex” bars discrimination based on sexual orientation or gender identity.8 Justice Gorsuch’s
majority opinion focused on the “ordinary public meaning” of Title VII’s text and the statute’s
causation standard.9 The Court in Bostock noted disagreement between the parties as to what the
term “sex” even meant under Title VII. One side asserted that sex centered on “reproductive
biology,” while the other claimed that “sex” includes more than anatomical features and
incorporates norms regarding gender identity.10 The Court declined to resolve this question,
noting that “nothing in our approach to these cases turns on the outcome of the parties’ debate,”
but proceeded on the assumption that sex refers to biological distinctions.11
The Court instead focused on the operation of Title VII’s language prohibiting discrimination
“because of . . . sex,” which, the majority opinion observed, incorporated the “but for” standard of
causation.12 The Court explained the operation of this causation standard in the following way: if
an outcome would not have occurred without, or “but for,” the purported cause, causation is
established.13 As Justice Gorsuch noted, there can be multiple but for causes of the same event.

4 Zarda v. Altitude Express, 883 F.3d 100, 131 (2d Cir. 2018) (en banc) (ruling that sexual orientation discrimination
violates Title VII); Bostock v. Clayton Cnty. Bd. of Commissioners, 894 F.3d 1335 (11th Cir. 2018) (en banc) (denying
rehearing en banc in a case that dismissed a Title VII claim brought by a gay man, relying on prior circuit precedent
holding that Title VII does not prohibit sexual orientation discrimination); Equal Emp. Opportunity Comm’n v. R.G. &.
G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574–75 (6th Cir. 2018) (ruling that discrimination for being
transgender violates Title VII).
5 42 U.S.C. § 2000e-2(a)(1).
6 Compare Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (en banc) (ruling that “sexual orientation
discrimination is a subset of sex discrimination,” and that “[s]exual orientation discrimination is also based on
assumptions or stereotypes about how members of a particular gender should be, including to whom they should be
attracted”), and Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 341 (7th Cir. 2017) (en banc) (“[W]e
conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”), with Evans v.
Georgia Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir. 2017) (ruling that Title VII does not recognize discrimination
claims based on sexual orientation and declining to recognize a claim under the sex-stereotyping theory of Price
Waterhouse).
7 Compare Equal Emp. Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574–75 (6th
Cir. 2018) (recognizing that transgender employees may bring Title VII claims under the sex stereotyping theory of
Price Waterhouse and holding that “discrimination on the basis of transgender and transitioning status violates Title
VII”), with Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (concluding that transgender people
“are not a protected class under Title VII”).
8 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).
9 Id. at 1738–43 (majority opinion).
10 Id. at 1739.
11 Id.
12 See infra “‘But-For’ Causation.”
13 Bostock, 140 S. Ct. at 1739. The Court has applied a different causation standard for Title VII cases in the past. See
Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (plurality opinion) (“To construe the words ‘because of’ as
colloquial shorthand for ‘but-for causation’ . . . is to misunderstand them.”). The Bostock majority opinion also noted
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The majority opinion gave an example: if a car crash occurred both because a defendant ran a red
light and because a plaintiff failed to signal, both mistakes qualify as but for causes.14 The Court
also emphasized that Title VII’s prohibition against discrimination is focused on discrimination
against individuals, rather than different treatment across groups.15 This distinction means that
firing a female worker because she is “insufficiently feminine,” or a male worker for being
“insufficiently masculine,” for example, violates the statute even if male and female workers are
generally treated the same overall.16 In light of the above, the Court reasoned that it is impossible
to discriminate against an employee based on sexual orientation or gender identity without
considering that individual’s sex.17 As an example, Justice Gorsuch pointed to a situation where
two employees, a man and a woman, are attracted to men.18 If an employer fires the man for
being attracted to men, but not the woman who is also attracted to men, in the view of the
majority, the employer has discriminated against the male employee for traits the employer
tolerates in a woman.19 For the Court, the employee is singled out in part because of his sex—a
“but for” cause of the discrimination.20 Likewise, the Court observed, if an employer fires a
transgender man (assigned female gender at birth who now identifies as a man) for being
transgender, the employer penalizes that person for being assigned the female gender at birth for
traits that it would tolerate in a person assigned the male gender at birth.21
Justice Gorsuch also rejected the suggestion that the majority’s interpretation should be
disfavored because it would have “undesirable policy consequences.”22 In particular, the opinion
dismissed the argument that “under Title VII itself . . . sex-segregated bathrooms, locker rooms,
and dress codes will prove unsustainable after our decision today.”23 The Court observed that “we
do not purport to address bathrooms, locker rooms, or anything else of the kind.”24 Instead, the
Court emphasized, the only question addressed in the case was whether firing an employee based
on the employee’s sexual orientation or gender identity was discrimination “because of . . . sex.”25
The majority opinion acknowledged that its decision could have implications for religious
liberty,26 but noted that Title VII has long intersected with several existing religious liberty legal

that Congress amended Title VII (and partially superseded Price Waterhouse) to provide an alternative “motivating
factor” standard. Civil Rights Act of 1991, P.L. 102-661 § 107, 105 Stat. 1075, codified at 42 U.S.C. § 2000e–2(m).
Applying that standard, liability can sometimes attach “even if sex wasn’t a but-for cause of the employer’s challenged
decision,” but the Bostock majority believed it unnecessary to resolve the case under this more lenient standard for
establishing liability. Bostock, 140 S. Ct. at 1739–40.
14 Bostock, 140 S. Ct. at 1739.
15 Id. at 1740.
16 Id. at 1741.
17 Id. at 1741.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id. at 1753.
23 Id.
24 Id.
25 Id.
26 The majority opinion also rejected the argument that, because the legislative authors of Title VII likely did not
anticipate that the statute prohibited discrimination based on sexual orientation or gender identity, Title VII should not
be interpreted to apply to those contexts. Id. at 1749. The Court ruled that the plain meaning of Title VII controlled,
irrespective of the principal goals of its congressional authors. Id.
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protections.27 First, the majority opinion pointed to one of Title VII’s exceptions for religious
organizations.28 Second, the Court noted that the First Amendment can prohibit applying
employment discrimination laws to claims that concern employment relationships between
ministers and their religious institutions.29 Finally, the majority opinion observed that the
Religious Freedom Restoration Act (RFRA) bars “the federal government from substantially
burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a
compelling governmental interest and represents the least restrictive means of furthering that
interest.”30 The Court described RFRA as a “kind of super statute, displacing the normal
operation of other federal laws,” which could supersede Title VII’s requirements in certain
circumstances.31 Though the Court did not elaborate further, it might have been referring to the
possibility of a defendant in a Title VII lawsuit raising RFRA as a defense to liability.
In dissent, Justice Alito, joined by Justice Thomas, claimed that the majority was functionally
legislating through the guise of a judicial decision.32 Among other things, Justice Alito argued that
virtually no one in 1964 would have understood the statute to prohibit discrimination on the basis
of sexual orientation or gender identity.33 He also highlighted arenas in which the Court’s
reasoning would have “far-reaching consequences.”34 He noted that numerous other statutes
prohibit sex discrimination, including Title IX of the Education Amendments of 1972, the Fair
Housing Act, and the Affordable Care Act.35 Justice Alito highlighted that the majority’s
reasoning would have potential consequences for these laws, although he explained that he was
not suggesting how the majority’s reasoning would actually apply to them.36 Nevertheless, he
argued that the Court’s holding will “threaten freedom of religion, freedom of speech, and
personal privacy and safety.”37 For Justice Alito, given these potential policy consequences and
given Title VII’s silence on sexual orientation or gender identify, whether Title VII bars
discrimination on these bases should be the product of legislative deliberation, rather than judicial
construction.38

27 Id. at 1754.
28 Id. See 42 U.S.C. § 2000e-1(a).
29 Bostock, 140 S. Ct. at 1754. See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Emp. Opportunity
Comm’n, 565 U.S. 171, 188 (2012).
30 Bostock, 140 S. Ct. at 1754. See 42 U.S.C. § 2000bb-1.
31 Bostock, 140 S. Ct. at 1754. See 42 U.S.C. § 2000bb-3.
32 See also Bostock, 140 S. Ct. at 1825 (Kavanaugh, J., dissenting) (arguing that the ordinary meaning of Title VII does
not prohibit discrimination based on sexual orientation).
33 Bostock, 140 S. Ct. at 1755 (Alito, J., dissenting).
34 Id. at 1778.
35 Id. at 1778-81.
36 Id. at 1778.
37 Id.
38 Id. (“If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to
consider competing interests and might have found a way of accommodating at least some of them. In addition,
Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming
categorically that employment discrimination based on sexual orientation or gender identity is simply a form of
discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a
bargained legislative resolution. Before issuing today's radical decision, the Court should have given some thought to
where its decision would lead.”).
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Initial Reaction to Bostock by the Biden
Administration
While courts will be asked to apply the Bostock decision when interpreting other civil rights
statutes that similarly prohibit sex discrimination, the judiciary is not the only branch of
government where the implications of the decision could be felt. Federal agencies also enforce a
variety of civil rights statutes that prohibit sex discrimination. For instance, Title IX makes
nondiscrimination based on sex a condition for receiving federal financial assistance in any
education program or activity.39 The Department of Education (ED) and other agencies that
distribute funds in this context can ultimately suspend or terminate funding in cases where the
respective agency determines that a recipient has violated the statute or applicable regulations.40
Accordingly, the interpretation by a federal agency of the meaning of a civil rights statute can
also be important for regulated entities.
The Biden Administration has already taken actions responsive to the Bostock decision relating to
agencies’ enforcement and interpretation of civil rights statutes. On the day of President Biden’s
inauguration, the White House issued an Executive Order (EO) stating that laws that prohibit sex
discrimination, including Title IX, “prohibit discrimination on the basis of gender identity or
sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”41 The
EO directs federal agencies to review actions implementing statutes that prohibit sex
discrimination that could be inconsistent with the Administration’s position on Bostock’s
application.42 Below are a few selected examples of how federal agencies have recently
responded to the EO and the Bostock decision.43
Department of Justice
The Department of Justice (DOJ) is responsible for the coordination of enforcement and
implementation by federal agencies of Title IX.44 In March 2021, the DOJ’s Civil Rights Division
issued a memorandum that concludes that Title IX’s prohibition against discrimination on the
basis of sex reaches discrimination based on sexual orientation and gender identity.45

39 20 U.S.C. § 1681(a).
40 Id. § 1682.
41 Exec. Order 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021).
42 Id.
43 Although this report does not comprehensively examine all such agency actions, other agencies have taken similar
actions to the ones discussed below. See, e.g., Equal Credit Opportunity (Regulation B); Discrimination on the Bases of
Sexual Orientation and Gender Identity, 86 Fed. Reg. 14363 (Mar. 16, 2021) (Consumer Financial Protection Bureau);
Dep’t of Hous. and Urban Devel., Memorandum from Jeanine Worden, Acting Assistant Secretary for Fair Housing
and Equal Opportunity (Feb. 11, 2021) (“HUD’s Office of General Counsel has concluded that the Fair Housing Act’s
sex discrimination provisions are comparable to those of Title VII and that they likewise prohibit discrimination
because of sexual orientation and gender identity.”),
https://www.hud.gov/sites/dfiles/FHEO/documents/WordenMemoEO13988FHActImplementation.pdf. On March 31,
2021 the Department of Defense also published an update to its policy on transgender service that “restores the
Department’s original 2016 policies regarding transgender service.” Dep’t of Def., DOD Announces Policy Updates for
Transgender Military Service (Mar. 31, 2021),
https://www.defense.gov/Newsroom/Releases/Release/Article/2557220/dod-announces-policy-updates-for-
transgender-military-service/.
44 See Exec. Order No. 12250, 45 Fed. Reg. 72,995 (Nov. 4, 1980).
45 Dep’t of Justice, Civil Rights Division, Memorandum to Federal Agency Civil Rights Directors and General
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Explaining the basis for its interpretation, the DOJ memorandum opens by observing that because
Title VII’s statutory prohibition against sex discrimination is similar to that of Title IX, courts
“consistently look to interpretations of Title VII to inform Title IX.”46 The memorandum also
emphasizes two features of Title IX that, in the agency’s view, indicate Bostock’s reasoning
applies to the statute. First, the Supreme Court’s opinion in Bostock focused on how Title VII
prohibits discrimination against individuals, and Title IX is similarly phrased to prohibit
discrimination against a “person.”47 Second, the language of Title IX’s prohibition, “on the basis
of sex,” is so similar to Title VII’s phrase “because of” that the two can “be considered
interchangeable.”48 The memorandum points out that the Bostock decision describes Title VII’s
prohibitions as extending to “discrimination in the workplace on the basis of . . . sex.”49 As the
Bostock decision concluded that discrimination “because of” sex includes discrimination because
of sexual orientation or gender identity, so too does Title IX’s prohibition against discrimination
“on the basis of sex” include discrimination based on sexual orientation and gender identity.50 The
DOJ memorandum also observes that whether any specific allegations of discrimination based on
sexual orientation or gender identity constitute a Title IX violation will depend on the specific
facts at issue in a particular case.51
Department of Education
On March 8, 2021, the White House issued another EO explaining that it is the policy of the
Biden Administration that all students deserve an educational environment free from sex
discrimination, including sexual harassment and discrimination based on sexual orientation and
gender identity.52 It directs the Secretary of Education, in consultation with the Attorney General,
to review all regulations, guidance, or similar agency actions that may be inconsistent with that
policy.53 The EO specifically points to Title IX regulations promulgated last year during the
Trump Administration addressing sexual harassment, directing the Secretary of Education to
review those regulations for consistency with Biden Administration policy and Title IX.54
ED has announced that it will examine its Title IX regulations for consistency with the Biden
Administration’s policy.55 As part of this review process, ED’s Office for Civil Rights (OCR) held
public hearings where members of the public could provide their views.56 The hearings aimed to

Counsels 1-3 (Mar. 26, 2021) [CRD Memorandum] (“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.”).
46 CRD Memorandum, supra note 45, at 1.
47 CRD Memorandum, supra note 45, at 2; 20 U.S.C. § 1681(a).
48 CRD Memorandum, supra note 45, at 2.
49 CRD Memorandum, supra note 45, at 2; see Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).
50 CRD Memorandum, supra note 45, at 2.
51 CRD Memorandum, supra note 45, at 3.
52 Exec. Order 14021, 86 Fed. Reg. 13,803 (March 11, 2021). The EO notes that sexual harassment includes sexual
violence.
53 Id. at 13,803.
54 Id. See generally CRS Legal Sidebar LSB10479, New Title IX Sexual Harassment Regulations Overhaul
Responsibilities for Schools, by Jared P. Cole.
55 Dep’t of Education, Letter from Suzanne Goldberg, Acting Assistant Secretary for Civil Rights to Students,
Educators, and other Stakeholders re Executive Order 14021 (April 6, 2021) [hereinafter Goldberg Letter].
56 Dep’t of Education, Title IX Hearing (last visited June 7, 2021), https://web.cvent.com/event/06428d78-948c-456b-
9d57-ac391407e1cc/summary.
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address steps that ED can take to (1) prevent sexual harassment in schools; (2) “ensure that
schools have grievance procedures that” can fairly and equitably resolve allegations of
discrimination; and (3) “address discrimination based on sexual orientation and gender identity”
at school.57 OCR also plans to issue a question and answer document outlining how the office
interprets schools’ “existing obligations” under current Title IX regulations.58 Finally, OCR
anticipates issuing a new notice of proposed rulemaking to amend the agency’s Title IX
regulations.59
The agency has also released a “Notice of Interpretation” explaining that Bostock’s reasoning
guides ED’s interpretation of Title IX’s prohibition against discrimination “on the basis of sex.”60
The Notice points to the textual similarity between Title VII’s “because of” language and Title
IX’s “on the basis of” phrasing.61 It asserts that the Supreme Court “has used these two phrases
interchangeably.”62 In addition, the Notice explains that both Title VII and Title IX protect
individuals against discrimination.63 ED’s Notice also argues that the Bostock decision noted the
lack of an exception under Title VII that would permit discrimination based on sexual orientation
or gender identity as evidence that such discrimination is prohibited.64 Similarly, ED notes, Title
IX “contains no exception for sex discrimination that is associated with an individual’s sexual
orientation or gender identity.”65 The Notice also relies for support on various federal court
opinions that have applied Bostock to Title IX, as well as the recent memorandum from DOJ,
discussed above, that argues the reasoning of Bostock apples to that statute.66
Department of Health and Human Services
The Department of Health and Human Services (HHS) has also announced that it considers
Bostock applicable to a sex discrimination ban that the agency enforces.67 By way of background,
Section 1557 of the Patient Protection and Affordable Care Act, commonly known as the
Affordable Care Act (ACA), prohibits discrimination in health programs or activities that receive
federal financial assistance.68 The statute does not list specific types of discrimination that are
barred in such federally funded programs, but instead incorporates by reference discrimination
“on the ground” prohibited by other statutes, including Title IX.69 As Section 1557 thus prohibits

57 Announcement of Public Hearing; Title IX of the Education Amendments of 1972, 86 Fed. Reg., 27429 (May 20,
2021).
58 Goldberg Letter, supra note 55, at 3.
59 Id. at 4.
60 Dep’t of Education, Office for Civil Rights, Notice of Interpretation: Enforcement of Title IX of the Education
Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of
Bostock v. Clayton County (June 16, 2021).
61 Id. at 6.
62 Id. at 7 (citing Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020)).
63 Id.
64 Id. at 8.
65 Id.
66 Id. at 9-10. For more on the DOJ memorandum, see supra “Department of Justice.”
67 Notification of Interpretation and Enforcement, 86 Fed. Reg. 27984 (May 25, 2021).
68 42 U.S.C. § 18116(a).
69 42 U.S.C. § 18116(a). In 2016, HHS promulgated regulations implementing Section 1557 which defined
discrimination on the basis of sex as including discrimination based on sex stereotyping and gender identity. See
Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,467 (May 18, 2016). A federal district
court enjoined enforcement of the portion of the rule that defined “on the basis of sex” to include gender identity, but
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sex discrimination in covered health programs, HHS’s current position is that it will interpret and
enforce that ban to include discrimination based on sexual orientation and gender identity.70
Potential Judicial Application of Bostock to other
Statutes
Whether and to what extent federal courts apply the reasoning of Bostock to interpret coverage
under other statutes is a complex and unresolved question. As discussed above, the Supreme
Court in Bostock anchored its analysis in the particular text of Section 703(a)(1) in Title VII,71
and the operation of the “but for” causation standard,72 to conclude that Title VII reaches claims
alleging discrimination based on sexual orientation and gender identity. The Court’s analysis and
reasoning suggests that an extension of Bostock to analyze other statutes would similarly involve
a lower court’s consideration of a statute’s text and its causation standard(s). Under that rationale,
the decision’s potential applicability to other antidiscrimination statutes may be most immediately
relevant to statutes that contain a similarly-phrased prohibition of sex discrimination and also
incorporate a “but for” causation standard.
Apart from the considerations reflected in the Court’s decision, however, federal courts could
take a range of other approaches to determining whether to apply Bostock to interpret the
coverage of other statutes. In general, a variety of considerations may shape whether a federal
court applies the judicial interpretation of one statute to another, including the case law that has
arisen under a particular statute, differences in the context and operation of a statute’s mandates,
and other canons of statutory interpretation.73 In addition, the Supreme Court has often looked to

left alone the portion of the rule regarding sex stereotyping. Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660,
695-96 (N.D. Tex. 2016). The court later vacated that same portion of the rule and remanded that aspect of the rule
back to the agency for further consideration. Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928, 945 (N.D. Tex.
2019). In 2020, following a change in presidential administrations, HHS promulgated new regulations that repealed the
previous regulation’s definition of “on the basis of sex,” which had specified that the phrase included sex stereotyping
and gender identity. See Nondiscrimination in Health and Health Education Programs or Activities, Delegation of
Authority, 85 Fed. Reg. 37,160 (June 19, 2020). Those 2020 regulations were proposed before the Supreme Court’s
decision in Bostock and published four days after the decision. The 2020 regulations were also challenged in federal
court. See, e.g., Whitman-Walker Clinic, Inc. v. Dep’t of Health & Human Servs., 485 F. Supp. 3d 1, 39 (D.D.C. 2020)
(concluding that the rule’s elimination of the definition of “on the basis of . . . sex” was arbitrary and capricious in light
of Bostock). In one decision, a federal district court concluded that the new regulations’ repeal of the terms “sex
stereotyping” and “gender identity” from a definition of “on the basis of sex” was “contrary to law” because the
preamble to the rules made clear that the reason for the change was an interpretation of the provisions of Section 1557
that was implicitly rejected by the Bostock decision. Walker v. Azar, 480 F.Supp. 417, 429 (E.D.N.Y. 2020). Moreover,
the district court reasoned, the agency’s failure to address the Bostock decision in its consideration of the rules was
arbitrary and capricious. Id. at 430. For these reasons, the agency stayed these aspects of the rule and issued a
preliminary injunction against their enforcement. Id.
70 Notification, supra note 67, at 27984.
71 See Bostock, 140 S.Ct. at 1738-39 (quoting the text of 42 U.S.C. § 2000e–2(a)(1) and describing its analysis as
beginning with “examining the key statutory terms”).
72 See id. at 1739-40 (after examining the text “sex” as “a starting point,” stating that “[t]he question isn’t just what
‘sex’ meant, but what Title VII says about it”; describing as “most notabl[e]” the statute’s prohibition against taking
certain actions “because of” sex and the provision’s causation standard).
73 See generally, e.g., Bostock v. Clayton Cty., 140 S.Ct. 1731, 1738-39 (2020) (describing its approach to interpreting
the Title VII provision at issue as “determin[ing] the ordinary public meaning” of the provision, by “orient[ing]
ourselves to the time of the statute’s adoption, here 1964, and []by examining the key statutory terms in turn before
assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.”); Gross, 557
U.S. at 175-76 (when addressing whether an ADEA violation could be established under a “motivating factor”
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its Title VII precedent when analyzing other antidiscrimination statutes, to both liken74 and
distinguish75 the operation or meaning of other statutes. Accordingly, a lower court might also
look to whether and in what ways the Supreme Court has likened or distinguished the statute in
question to Title VII, as well as look to its own precedent for that purpose. Meanwhile, as federal
agencies issue guidance or regulations pursuant to the administration’s understanding of the
implications of the Bostock decision, these actions may also inform how some courts interpret
other statutes addressing sex discrimination.76 While the above-mentioned considerations may
shape a court’s application of Bostock, it is possible that other considerations may inform a
court’s interpretation as well.77
Federal Statutes that Address Various Forms of Sex Discrimination
One relevant starting point for considering the potential application of Bostock is the
identification of other statutes that expressly prohibit a form of sex discrimination. Apart from the
prohibition of discrimination “because of . . . sex”78 in Section 703(a)(1) of Title VII, which
applies to certain employment actions taken by private sector employers,79 various other federal
statutes also prohibit forms of sex-based treatment in different settings.

In the labor context, for example, the Equal Pay Act prohibits certain covered employers80 from
“discriminat[ing] . . . between employees on the basis of sex by paying wages to employees” at a
lesser rate than “the rate at which he pays wages to employees of the opposite sex . . . for equal
work.”81 In the education context, Title IX of the Education Amendments of 1972 prohibits

causation standard, applying a canon of statutory interpretation that courts should examine the statutory text at issue
and assume “that the ordinary meaning of that language accurately expresses the legislative purpose”). See also, e.g.,
infra notes 74 and 75.
74 See, e.g., Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, 576 U.S. 519, 530-35 (2015) (to
determine whether the Fair Housing Act (FHA) prohibits “housing decisions with a disparate impact,” looking to its
Title VII precedent addressing the availability of disparate impact liability under Title VII’s private sector provision in
Griggs v. Duke Power Co., 401 U.S. 424 (1971); concluding that its analysis in Griggs and its precedent analyzing the
Age Discrimination in Employment Act supported interpreting the FHA to similarly encompass disparate impact
liability).
75 See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173-75, 179 (2009) (analyzing whether a plaintiff can
establish a violation of the Age Discrimination in Employment Act (ADEA) under a “motivating factor” causation
standard, and rejecting the argument that its Title VII precedent addressing causation should control its interpretation of
the ADEA; stating that “[b]ecause Title VII is materially different with respect to the relevant burden of persuasion,”
those decisions “do not control our construction of the ADEA”). See also, e.g., United Steelworkers of America, AFL-
CIO-CLC v. Weber, 443 U.S. 193, 206, n.6 (1979) (discussing differences between Title VI and Title VII of the Civil
Rights Act of 1964 and stating that “Title VII and Title VI, therefore, cannot be read in pari materia.”).
76 See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016) (deferring to ED’s
interpretation of Title IX regulations contained in a 2015 opinion letter). The Supreme Court later vacated and
remanded this decision to the Fourth Circuit after a new presidential administration issued guidance rescinding the
2015 opinion letter, as well as another opinion letter from 2016. Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S.
Ct. 1239 (2017). See generally supra section “Initial Reaction to Bostock by the Biden Administration.”
77 For example, depending on which claims and theories are presented before federal courts, and which considerations
courts view as persuasive or dispositive, courts could arrive at different conclusions concerning the extent to which
Bostock affects the interpretation of another statute that also addresses sex discrimination.
78 See 42 U.S.C. § 2000e–2(a)(1).
79 Cf. id.; id. § 2000e-16(a) (Title VII mandate applicable to various federal sector employers).
80 See 29 U.S.C. § 203(s).
81 See id. § 206(d)(1) (also describing “equal work” in terms of “jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working conditions,” and setting out certain
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federally funded education programs or activities from “exclud[ing] from participation,”
“den[ying] the benefits of,” or “subject[ing] to discrimination” a person “on the basis of sex.”82
Title IX and its implementing regulations also identify sex-based distinctions permitted in certain
circumstances.83 In the housing and real estate context, the Fair Housing Act bars covered
entities84 from certain actions against any person relating to the rental and sale of property
“because of . . . sex,” among other protected traits.85 In the context of credit transactions, the
Equal Credit Opportunity Act prohibits creditors from “discriminat[ing] against any applicant . . .
on the basis of . . . sex,”86 while also defining conduct that does not constitute discrimination
under the Act.87
Like the statutory prohibition addressed in Bostock, the mandates of the above-listed statutes also
prohibit some form of sex discrimination. That similarity alone, however, does not necessarily
mean that courts will interpret these mandates in the same way.88 Rather, distinctions among these
statutes could lead a court to assess the potential application of Bostock differently, including in
light of a provision’s distinctive text or phrasing, the constitutional basis upon which the statute
was enacted, the context and fact patterns that arise under a statute, or its particular operation
(such as burdens of proof and affirmative defenses).89 Meanwhile, the Supreme Court itself
reached its conclusion in Bostock concerning the scope of Section 703(a)(1) based on more than
that provision’s express prohibition of sex discrimination. Another key consideration for the

exceptions).
82 See 20 U.S.C. § 1681(a) (providing 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,” subject to nine exceptions).
83 See id. § 1681(a)(1)–(9) (setting out exceptions). See also, e.g., 34 C.F.R. § 106.32(b) (permitting a recipient to
“provide separate housing on the basis of sex”); id. § 106.34(b) (permitting recipients that operate nonvocational
coeducational elementary or secondary schools to “provide nonvocational single-sex classes or extracurricular
activities,” subject to certain requirements).
84 See 42 U.S.C. § 3603 (enumerating entities to which § 3604 of the Fair Housing Act applies).
85 See id. §§ 3604(a)-(f) (making it unlawful, for example, to “refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin,” among other prohibited conduct, including with
respect to disability).
86 See 15 U.S.C. § 1691(a) (“It shall be unlawful for any creditor to discriminate against any applicant, with respect to
any aspect of a credit transaction- (1) on the basis of race, color, religion, national origin, sex or marital status, or age
(provided the applicant has the capacity to contract); (2) because all or part of the applicant’s income derives from any
public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter.”).
87 See id. §§ 1691(b) and (c).
88 As discussed in a later section of this report, for example, the Court’s precedent addressing Title IX of the Education
Amendments of 1972 reflects that the Court has at times rejected arguments that Title IX should be interpreted in light
of Title VII. See infra section “Supreme Court Precedent Addressing Title IX in Relation to Title VII.”
89 For example, although the Equal Pay Act (EPA), like Title VII, prohibits discriminatory compensation based on sex
in certain circumstances, the EPA phrases its mandate in different terms, operates on a different burden-shifting
framework than Title VII claims, and contains a multi-pronged affirmative defense. See generally, e.g., Rizo v. Yovino,
950 F.3d 1217, 1222 (9th Cir. 2020) (discussing the operation of the EPA’s four exceptions to its equal-pay mandate as
affirmative defenses); id. at 1223 (stating that EPA claims, unlike Title VII claims, do not require evidence of
discriminatory intent, and do not use the “familiar three-step McDonnell Douglas framework that applies to Title VII
claims”). Cf. 42 U.S.C. § 2000e-2(a)(1) (Title VII provision making it unlawful to “discriminate against any individual
with respect to his compensation . . . because of such individual’s . . . sex”); 29 U.S.C. § 206(d)(1) (EPA provision
phrasing its mandate to prohibit discrimination “between employees on the basis of sex by paying wages to employees
in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions”).
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Court was the operation of that text under a “but for” causation standard.90 Given that emphasis,
the next section of this report examines the issue of causation in more detail.
Interpreting Statutes for Causation Purposes
As courts address arguments concerning the applicability of Bostock to interpret another statute’s
prohibition of sex discrimination, courts may also consider whether that other statute—like the
Title VII provision at issue in Bostock—incorporates “but for” causation.91 This section briefly
discusses the “but for” causation standard before turning to Supreme Court precedent interpreting
provisions in antidiscrimination statutes for causation purposes. While the issue of causation can
encompass a range of complex legal questions,92 as a general matter, antidiscrimination statutes—
including provisions within the same statute—do not phrase their mandates in a uniform
manner,93 and differences in text can produce different interpretations with respect to causation.94
As the discussion below reflects, when the Supreme Court has interpreted the text “because of” in
several antidiscrimination statutes for causation purposes, it has often looked at factors beyond
the plain text to inform its decisions.
“But For” Causation
The “but for” causation standard, as described by the Supreme Court, generally requires that a
plaintiff show that the harm being alleged “‘would not have occurred’ in the absence of—that is,

90 See Bostock, 140 S.Ct. at 1739-40.
91 See, e.g., Adams by and through Kasper v. Sch. Bd. of St. Johns County, 968 F.3d 1286, 1305 (11th Cir. 2020)
(describing the Supreme Court’s analysis in Bostock and stating that the “but for” causation standard was “critical to its
expansive interpretation of sex discrimination.”) (citing Bostock, 140 S. Ct. at 1739).
92 See, e.g., Sandra F. Sperino, The Emerging Statutory Proximate Cause Doctrine, 99 NEB. L. REV. 285, 286, 293
(2020) (stating that “factual cause doctrine is a central battleground of discrimination jurisprudence”; describing factual
causation in discrimination law as turning on the two central issues of “the substantive standard for establishing
causation (motivating factor versus ‘but for’ cause) and the party required to establish causation” and observing that
“[s]ince the early 1970s, the Supreme Court has been engaged in a decades-long battle about causation in
discrimination law.”) (footnotes omitted).
93 See, e.g., 42 U.S.C. § 2000e-2(m) (Title VII provision establishing liability for intentional discrimination under a
“motivating factor” causation standard); 42 U.S.C. § 2000e-16 (Title VII provision applicable to federal sector
employers which is phrased to require that “[a]ll personnel actions affecting employees or applicants for employment . .
. shall be made free from any discrimination based on race, color, religion, sex, or national origin.”). See also, e.g., 29
U.S.C. § 623(a)(1) (ADEA provision applicable to private sector employers, making it unlawful for employers to “fail
or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s age”); 29 U.S.C. § 633a(a)
(ADEA provision applicable to federal sector employers, mandating that “[a]ll personnel actions affecting employees
or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on
age.”). Cf. 38 U.S.C. § 4311(a) (provision in the Uniformed Services Employment and Reemployment Rights Act
(USERRA), mandating that a “person who is a member of . . . a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the
basis of that membership, application for membership, performance of service, application for service, or obligation.”).
94 See, e.g., Babb v. Wilkie, 140 S.Ct. 1168, 1171, 1177-78 (2020) (analyzing the text and syntax of 29 U.S.C. §
633a(a), which mandates that “[a]ll personnel actions affecting employees … who are at least 40 years of age . . . shall
be made free from any discrimination based on age”; interpreting this text to incorporate two causation standards with
different remedies); Staub v. Proctor Hosp., 562 U.S. 411, 416-17, 422 (2011) (interpreting text in USERRA and
stating that the “central difficulty in this case is construing the phrase ‘motivating factor in the employer’s action’”;
holding that liability may be established under this statutory text “if a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action”) (emphasis in original).
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but for—the defendant’s” discriminatory motive.95 Put another way, the evidence must show that
the defendant’s adverse or negative treatment of a person would not have occurred but for the
person’s protected trait.96 Federal courts have differed in their views on how demanding the “but
for” standard is to satisfy.97
Supreme Court Precedent Addressing Causation in
Antidiscrimination Statutes
Critically, numerous statutes do not explicitly indicate which, if any, causation standard(s) to
apply, and the Supreme Court has repeatedly had to address which causation standards should
govern a particular statutory claim.98 As the Court has addressed the question of causation in
antidiscrimination provisions over the years, a prominent thread of these decisions has concerned
how to interpret the text “because” or “because of” in certain provisions.99

95 See generally, e.g. Nassar, 570 U.S. 338, 346-47 (2013) (describing “but for” causation and stating that “[i]n the
usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the absence of—
that is, but for—the defendant’s conduct”) (citations omitted).
96 See id. See generally Bostock, 140 S.Ct. at 1739 (stating that “causation is established whenever a particular outcome
would not have happened ‘but for’ the purported cause. In other words, a but-for test directs us to change one thing at a
time and see if the outcome changes. If it does, we have found a but-for cause.”). Cf. Burrage v. United States, 571 U.S.
204, 211 (2014) (describing the operation of “but for” causation; explaining that if a combination of multiple factors
produced one result, one of the “predicate act[s]” constitutes a “but for” cause “if, so to speak, it was the straw that
broke the camel’s back”).
97 Cf. Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 323-24 (2021) (stating that satisfying “but for” causation “is no
simple task” under the Age Discrimination in Employment Act; describing the standard as requiring a “showing that
age was the determinative reason they were terminated”) (emphasis in original); Kurtzhals v. Cnty. of Dunn, 969 F.3d
725, 729-30 (7th Cir. 2020) (observing that causation is “often the most difficult element” and concluding that the
plaintiff had failed to make the requisite showing on his Americans with Disabilities Act claim; describing the “but for”
causation standard as asking, based on the evidence, if “a reasonable juror [could] conclude that he would not have
suffered the same adverse employment action if he were not disabled and everything else had remained the same”)
(citations omitted); United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019) (in the context of reviewing a district
court’s application of a criminal sentencing enhancement, discussing the “but for” causation standard and describing it
as “not a difficult burden to meet.”) (citing Nassar, 570 U.S. at 346–47 (2013); United States v. Ramos-Delgado, 763
F.3d 398, 402 (5th Cir. 2014)). See generally, e.g., Leora F. Eisenstadt, Causation in Context, 36 BERKELEY J. EMP. &
LAB. L. 1, 3 (2015) (“The notion of ‘but-for’ causation in employment discrimination cases has been debated in courts
and among scholars at least since the Court decided Price Waterhouse v. Hopkins in 1989.”). See also id. at 16
(asserting that “the nature of human thought processes makes a ‘but-for’ causation standard difficult, if not impossible,
to apply in the employment context”).
98 See, e.g., Babb, 140 S.Ct. at 1171-72 (addressing which causation standard(s) should be applied to the federal-sector
provision of the Age Discrimination in Employment Act of 1967 “to resolve a Circuit split over the interpretation” of
that provision); Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S.Ct. 1009, 1013, (2020)
(addressing which causation standard applies to 42 U.S.C. § 1981 “[t]o resolve the disagreement among the circuits
over § 1981’s causation requirement”); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342-43 (2013)
(addressing whether Title VII’s antiretaliation provision incorporates the “lessened causation standard” of “motivating
factor” or the higher standard of “but for” causation). See also, e.g., Burrage v. United States, 571 U.S. 204, 206, 210
(2014) (addressing the statutory text “results from” in the Controlled Substances Act to determine whether it
incorporates “contributing to” or “but for” causation, as the “Act does not define the phrase”).
99 See, e.g., Nassar, 570 U.S. at 348-52 (discussing its precedent addressing the text “because of” in other statutory
provisions to inform its interpretation of the text “because of” in Section 704(a) of Title VII of the Civil Rights Act of
1964); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009) (addressing the meaning of the text “because of” in
Section 4(a)(1) of the Age Discrimination in Employment Act); Price Waterhouse v. Hopkins, 490 U.S. 228, 240-42
(1989) (plurality opinion) (discussing the meaning of the text “because of” in Section 703(a)(1) of Title VII of the Civil
Rights Act of 1964).
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The Court has taken various approaches to interpreting antidiscrimination provisions for
causation purposes, including with respect to the statutory text “because” or “because of.” Rather
than viewing those terms as necessarily incorporating “but for” causation,100 the Court has
considered the broader context of the statutory provision at issue,101 including the provision’s
other text and phrasing,102 the relationship to a statute’s overall schema (including other statutory
provisions),103 and common law tort principles to inform its interpretation.104 While the Court’s
most recent decisions appear to reflect greater reliance on common law tort doctrine to read in
“but for” causation as a “default” standard,105 the Court continues to underscore the specific
choice of text and syntax in a provision106 to determine whether “but for” causation, or another
causation standard or related formulation,107 applies.
Price Waterhouse v. Hopkins (1989): Introducing “Motivating Factor” Causation
Bostock was not the first time the Court addressed causation in Section 703(a)(1) of Title VII,
which makes it is unlawful for certain private sector employers “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual . . . because of such
individual’s . . . sex.”108 While the Court in Bostock construed this text to incorporate a “but for”

100 See, e.g., infra notes 101-103.
101 See, e.g., Gross, 557 U.S. at 173-75 (when interpreting “because of” in the ADEA, considering Congress’s decision
to amend Title VII to codify “motivating factor” causation in that statute, but to not similarly amend the ADEA).
102 See, e.g., Price Waterhouse, 490 U.S. at 241-42 (plurality opinion) (considering the “present, active tense of the
operative verbs of § 703(a)(1)” when interpreting Section 703(a)(1) of Title VII to incorporate a “motivating factor”
causation standard).
103 See, e.g., Nassar, 570 U.S. at 362 (pointing to the “text, structure, and history of Title VII” as supporting the Court’s
interpretation that “a plaintiff making a retaliation claim under § 2000e–3(a) must establish that his or her protected
activity was a but-for cause of the alleged adverse action by the employer.”).
104 See, e.g., id. at 346-47 (discussing and citing various treatises addressing common law tort doctrine, including
different sections of the RESTATEMENT OF TORTS (1934), RESTATEMENT (SECOND) OF TORTS (1963 and 1964), and
RESTATEMENT (THIRD) OF TORTS (2010)).
105 See, e.g., Comcast, 140 S.Ct. at 1013-14 (characterizing “but for” causation as the “traditional arrangement,” and
describing it as a “‘default’ or ‘background’ rule”) (citing Nassar, 570 U.S. at 347); Burrage, 571 U.S. at 211 (stating
that the “but-for requirement is part of the common understanding of cause”). See also Comcast, 140 S.Ct. at 1014-15
(addressing the statutory text at issue, which did “not expressly discuss causation,” and holding that it required a
showing that “race was a but-for cause” of the harm); Burrage, 571 U.S. at 218 (concluding that the statute at issue
required a showing of “but for” causation).
106 See, e.g., Babb v. Wilkie, 140 S.Ct. 1168, 1173-76 (2020) (when interpreting the ADEA’s federal sector provision
for causation purposes, examining the text “free from,” “shall be made,” “discrimination,” and “based on age”; in its
analysis, also emphasizing two “critical” matters of syntax concerning the “adjectival phrase” “based on age” and its
modification of the noun “discrimination,” and the “adverbial phrase” “free from any discrimination” and its
modification of the verb “made”) (discussing and citing 29 U.S.C. § 633a(a)).
107 See, e.g., supra note 106. Addressing the question of whether a plaintiff must show “but for” causation to establish
liability under 29 U.S.C. § 633a(a), the Court in Babb interpreted the text to require that “a personnel action must be
made ‘untainted’ by discrimination based on age.” See 140 S.Ct at 1173-74 (“If age discrimination plays any part in the
way a decision is made, then the decision is not made in a way that is untainted by such discrimination.”). Pursuant to
that rationale, the Court concluded that a plaintiff could prevail on a claim by showing that age tainted the decision,
even if age was not a “but for” cause of the decision itself. See id. In terms of the requisite showing of causation, the
Court held that if a plaintiff shows that “age was a but-for cause of differential treatment in an employment decision but
not a but-for cause of the decision itself,” then a plaintiff can establish liability under the provision but would be
limited to “injunctive or other forward-looking relief.” See id. at 1178. The Court also interpreted Section 633a(a) to
allow a plaintiff to establish liability by showing that “age discrimination was a but-for cause of the employment
outcome” itself, in which case such plaintiffs could seek relief in the form of “reinstatement, backpay, compensatory
damages, or other forms of relief related to the end result of an employment decision.” See id. at 1177-78.
108 42 U.S.C. § 2000e-2(a)(1).
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causation standard,109 the Court some three decades earlier in its Price Waterhouse v. Hopkins
decision interpreted the same text to employ a different standard110—“motivating factor” or
“substantial factor” causation.111 The “motivating factor” standard requires a showing that an
individual’s protected trait “played a motivating part in an employment decision,” even if other
factors also played a role.112
Though no single opinion in Price Waterhouse commanded a majority,113 a four-Justice plurality
expressly rejected the view that “because of” in this provision was “colloquial shorthand for ‘but-
for causation,’” stating that to “construe the words” in that way was to “misunderstand them.”114
In reaching that conclusion, the plurality opinion emphasized the “present, active tense of the
operative verbs” in the provision, such as “to fail or refuse,” as indicating that a Title VII analysis
should focus on “the actual moment of the event in question.”115 Given that focus, the plurality
concluded that the “critical inquiry, the one commanded by the words of Section 703(a)(1), is
whether gender was a factor in the employment decision.”116 The plurality contrasted this inquiry
with the “hypothetical construct” of “but-for” causation, which “begin[s] by assuming that [a]
factor was present at the time of the event, and then ask[s] whether, even if that factor had been
absent, the event nevertheless would have transpired in the same way.”117 The plurality expressed
skepticism that Congress would have used the phrase “because of” “to obligate a plaintiff to
identify the precise causal role” in a challenged employment action.118 Citing these and other
reasons,119 the plurality concluded that Section 703(a)(1) requires a plaintiff to show that “gender

109 Bostock, 140 S.Ct. at 1739-40.
110 Price Waterhouse v. Hopkins, 490 U.S. 228, 239-42 (1989) (plurality opinion). Although Section 703(a)(2) was not
at issue before the Court in Price Waterhouse, the plurality also referred to the text “because of” in (a)(2) when
rejecting an interpretation of “but for” causation based on the text “because of.” See id. at 240 (referring to both 42
U.S.C. §§ 2000e–2(a)(1) and (a)(2) when rejecting the view that “the words ‘because of’” incorporated “but-for”
causation).
111 Price Waterhouse, 490 U.S. at 244-45, 258. See also id. at 259-60 (White, J., concurring in judgment) (agreeing that
the plaintiff’s burden is “to show that the unlawful motive was a substantial factor in the adverse employment action”
and that after such a showing, “[t]he burden of persuasion then should have shifted to Price Waterhouse to prove ‘by a
preponderance of the evidence that it would have reached the same decision ... in the absence of’ the unlawful motive”)
(citation omitted); id. at 276 (O’Connor, J., concurring in judgment) (stating that “a disparate treatment plaintiff must
show by direct evidence that an illegitimate criterion was a substantial factor in the decision” and that upon such a
showing, “the burden then rests with the employer to convince the trier of fact that it is more likely than not that the
decision would have been the same absent consideration of the illegitimate factor”).
112 See id. at 244. See also Nassar, 570 U.S. at 343 (describing the “motivating factor” causation standard as requiring a
showing that “the motive to discriminate was one of the employer’s motives, even if the employer also had other,
lawful motives that were causative in the employer’s decision.”).
113 See Nassar, 570 U.S. 338, 348 (2013) (discussing the Price Waterhouse decision, in which the Court “addressed in
particular what it means for an action to be taken ‘because of’ an individual’s” protected trait; stating that “[a]lthough
no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-
based discrimination if he or she could show that one of the prohibited traits was a ‘motivating’ or ‘substantial’ factor
in the employer’s decision.”) (citing Price Waterhouse, 490 U.S., at 258 (plurality opinion); id. at 259 (White, J.,
concurring in judgment); id., at 276 (O’Connor, J., concurring in judgment)).
114 See Price Waterhouse, 490 U.S. at 240-41.
115 See Price Waterhouse, 490 U.S. at 240-41.
116 Id. at 241.
117 Id. at 240.
118 Id. at 241 (“It is difficult for us to imagine that, in the simple words ‘because of,’ Congress meant to obligate a
plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision
she challenges.”).
119 Id. at 242 (discussing another Title VII provision—the statute’s “bona fide occupational qualification” exception—
as further support for its interpretation) (citing 42 U.S.C. § 2000e–2(e)).
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played a motivating part in an employment decision,” with two Justices concurring in the
judgment.120 The four-Justice plurality and two Justices also agreed that an employer could avoid
liability altogether “by proving that it would have made the same decision even if it had not
allowed gender to play such a role.”121
Two years after the Price Waterhouse decision, in 1991, Congress codified in part and rejected in
part the holding of that case.122 Congress codified the “motivating factor” causation standard in
Title VII,123 thereby appearing to endorse that aspect of Price Waterhouse.124 Congress, however,
rejected the aspect of Price Waterhouse holding that an employer could avoid liability altogether
where it could establish that it would have made the same decision absent consideration of the
individual’s sex.125 In amending the statute, Congress left the text of Section 703(a)(1)
unchanged,126 but added provisions expressly providing that liability under Section 703(a)(1)
could be established with a showing of “motivating factor” causation,127 and addressing the
burden-shifting framework and available relief for such claims.128
Gross v. FBL Financial Services, Inc. (2009): Rejecting “Motivating Factor”
Causation
In its 2009 decision Gross v. FBL Financial Services, Inc.,129 the Court again reached the issue of
causation, this time in a provision of the Age Discrimination in Employment Act (ADEA).130 In
contrast to Price Waterhouse, the Court held that the statutory text at issue—“because of such

120 See supra notes 111, 113.
121 See supra note 111.
122 See Nassar, 570 U.S. at 343 (discussing Price Waterhouse and stating that Congress’s “ensuing statutory
amendment” “codified in part and abrogated in part the holding in Price Waterhouse”) (citing 42 U.S.C. §§ 2000e–
2(m), 2000e–5(g)(2)(B)). See also Nassar, 570 U.S. at 348 (stating that “[t]wo years later, Congress passed the Civil
Rights Act of 1991,” which among other things, “codified the burden-shifting and lessened-causation framework of
Price Waterhouse in part but also rejected it to a substantial degree”).
123 See supra note 122 and infra note 127.
124 See Nassar, 570 U.S. at 370 (Ginsburg, J., dissenting, joined by three other Justices) (“Congress endorsed the
plurality’s conclusion that, to be actionable under Title VII, discrimination must be a motivating factor in, but need not
be the but-for cause of, an adverse employment action” but “disagreed with the Court, however, insofar as the Price
Waterhouse decision allowed an employer to escape liability by showing that the same action would have been taken
regardless of improper motive.”) (citing H.R. REP. NO. 102–40, pt. II, at 18 (1991)).
125 See Nassar, 570 U.S. at 349 (“The 1991 Act also abrogated a portion of Price Waterhouse’s framework by
removing the employer’s ability to defeat liability once a plaintiff proved the existence of an impermissible motivating
factor.”).
126 See Civil Rights Act of 1991, P.L. 102-166, § 107, 105 Stat. 1071, 1075-76.
127 See Civil Rights Act of 1991, P.L. 102-166, § 107(a), 105 Stat. 1071, 1075-76, codified at 42 U.S.C. § 2000e-2(m).
128 See supra notes 125 and 126; 42 U.S.C. § 2000e–5(g)(2)(B)). See generally Comcast, 140 S.Ct. at 1017 (“In the
Civil Rights Act of 1991, Congress provided that a Title VII plaintiff who shows that discrimination was even a
motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief.”)
(citing § 107, 105 Stat. 1075); Nassar, 570 U.S. at 349 (explaining that under the 1991 Act, “a plaintiff could obtain
declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color,
religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would
still have taken the same employment action would save it from monetary damages and a reinstatement order.”).
129 557 U.S. 167 (2009).
130 See id. at 176 (examining the text of 29 U.S.C. § 623(a)(1) of the Age Discrimination in Employment Act).
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individual’s age”—incorporated “but for” causation.131 In so holding, the Court rejected
arguments that the text should be read to incorporate “motivating factor” causation.132
In distinguishing the ADEA provision from the Title VII provision at issue in Price Waterhouse,
the Court in Gross cautioned that “[w]hen conducting statutory interpretation, we ‘must be
careful not to apply rules applicable under one statute to a different statute without careful and
critical examination.’”133 Highlighting differences between the statutory text of the ADEA and
Title VII, the Court pointed to Congress’s amendment of Title VII to add “motivating factor”
causation without similarly amending the ADEA to expressly incorporate this standard, even
though Congress had contemporaneously amended the ADEA in other ways.134 The Court
emphasized that it could not “ignore Congress’ decision to amend Title VII’s relevant provisions
but not make similar changes to the ADEA,” and observed that “[w]hen Congress amends one
statutory provision but not another, it is presumed to have acted intentionally.”135 On that basis,
the Court concluded that its “interpretation of the ADEA is not governed by Title VII decisions
such as . . . Price Waterhouse.”136
Differentiating the ADEA provision from Title VII in that regard,137 the Court turned to the
specific text of the ADEA provision at issue. Citing dictionary definitions of the word “because,”
the Court concluded that the “ordinary meaning” of the text “because of” in the ADEA provision
meant that “age was the ‘reason’ that the employer decided to act,”138 which in turn corresponded
as a legal matter to “but for” causation.139 To support that conclusion, the Court cited two other
decisions without additional discussion:140 one decision in which the Court addressed the import
of the statutory phrase “‘[a]ny person injured in his business or property by reason of a
violation’” in an anti-racketeering statute;141 and another in which the Court examined the

131 Id. at 176 (“To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff
must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”).
132 See id. at 174-75.
133 Id. at 174 (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)).
134 Id.
135 Id. at 174.
136 Id. at 175.
137 See also id. at 178 (rejecting the argument that the Court should adopt the burden-shifting framework in Price
Waterhouse to the ADEA, observing that “it has become evident in the years since that case was decided that its
burden-shifting framework is difficult to apply”). See also id., n. 5 (“Congress’ careful tailoring of the ‘motivating
factor’ claim in Title VII, as well as the absence of a provision parallel to § 2000e–2(m) in the ADEA, confirms that we
cannot transfer the Price Waterhouse burden-shifting framework into the ADEA.”).
138 Id. at 175-77.
139 Id. at 176 (“To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff
must prove that age was the “but-for” cause of the employer’s adverse decision.”).
140 See id. (citing Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 652-55 (2008); Safeco Ins. Co. of America
v. Burr, 551 U.S. 47, 63–64, and n. 14 (2007)). See also id. (parenthetically describing its citation to Bridge as
“recognizing that the phrase, ‘by reason of,’ requires at least a showing of ‘but for’ causation”); id. (parenthetically
describing its citation to Safeco as “observing that ‘[i]n common talk, the phrase ‘based on’ indicates a but-for causal
relationship and thus a necessary logical condition’ and that the statutory phrase, ‘based on,’ has the same meaning as
the phrase, ‘because of’”).
141 See Bridge, 533 U.S. at 641-42 (quoting 18 U.S.C. § 1964(c)) of the Racketeer Influenced and Corrupt
Organizations Act (RICO)), and explaining that the “question presented in this case is whether a plaintiff asserting a
RICO claim predicated on mail fraud must plead and prove that it relied on the defendant’s alleged
misrepresentations.”). See also id. at 653-54 (discussing an earlier decision in which the Court “recognized that §
1964(c)’s ‘language c[ould], of course, be read to mean that a plaintiff is injured ‘by reason of’ a RICO violation” upon
a showing that “the defendant’s violation was a ‘but for’ cause of plaintiff’s injury” but ultimately concluded that this
text additionally “require[d] the plaintiff to establish proximate cause in order to show injury ‘by reason of’ a RICO
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statutory phrase “adverse action ... based in whole or in part on any information contained in a
consumer [credit] report” in a provision of the Fair Credit Reporting Act.142
University of Texas Southwestern Medical Center v. Nassar (2013): “Textbook
Tort Law” to Address Causation
A few years later, in its 2013 decision University of Texas Southwestern Medical Center v.
Nassar,143 the Supreme Court addressed which causation standard—“but for” or “motivating
factor”—should apply to yet another antidiscrimination provision, this time Title VII’s
antiretaliation provision.144 That provision generally bars retaliatory actions against an employee
“because” the employee has opposed an employment practice prohibited under Title VII or was
involved in a Title VII-related investigation or proceeding.145
In its analysis, the Court placed particular emphasis on common law tort doctrine as an
interpretive tool to analyze questions of causation. Describing “but for” causation as “textbook
tort law,” and observing that such tort law concepts are “the background against which Congress
legislated in enacting Title VII,” the Court stated that it would presume that Congress
incorporated these “default” rules, in the absence of legislative intent in the statute indicating
otherwise.146 In addition to emphasizing this “background” understanding, the Nassar Court also
looked to its analysis in Gross,147 and concluded that the earlier decision contained “insights” for
interpreting Title VII’s antiretaliation provision,148 and supported the conclusion that “because” as
it appears in Title VII’s antiretaliation provision similarly requires “but for” causation.149
The Nassar Court also discussed other aspects of Title VII to support its interpretation,150
including a comparison of specific textual references to “unlawful employment practice” in Title

violation”) (citing and discussing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265–266, 268 (1992).
142 See Safeco, 551 U.S. at 52 (discussing and quoting 15 U.S.C. §§ 1681m(a) and 1681n(a) of the Fair Credit
Reporting Act); id. at 63-64 (in the context of addressing a party’s contention “that in order to have adverse action
‘based on’ a credit report, consideration of the report must be a necessary condition for the increased rate,” concluding
that “[t]o the extent there is any disagreement on the issue, we accept [that] reading; further stating that because in
“common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition,”
concluding that “an increased rate is not ‘based in whole or in part on’ the credit report unless the report was a
necessary condition of the increase.”). Cf. Babb, 140 S.Ct. at 1175 (discussing its analysis in Safeco and highlighting
differences in the text of the provision at issue in that case with the text of the ADEA’s federal sector provision, 29
U.S.C. § 633a(a)).
143 570 U.S. 338 (2013).
144 Id. at 342-43 (discussing the “but for” and “motivating factor” causation standards and stating that the “question the
Court must answer here is whether that lessened causation [“motivating factor”] standard is applicable to claims of
unlawful employer retaliation under § 2000e–3(a).”).
145 See 42 U.S.C. § 2000(e)-3(a). For further discussion of Title VII’s antiretaliation provision, see CRS Report
R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back, at 77-78 (Sept. 21, 2020).
146 Nassar, 570 U.S. at 346-47.
147 Id. at 343 (stating that though “the Court has not addressed the question of the causation showing required to
establish liability for a Title VII retaliation claim,” stating that its holding and analysis in Gross “are instructive here”).
148 Id. 350-52 (discussing its analysis in Gross and stating that “that opinion holds two insights for the present case,”
the first being “textual and concern[ing] the proper interpretation of the term ‘because’ as it relates to the principles of
causation,” and the second being “the significance of Congress’ structural choices in both Title VII itself and the law’s
1991 amendments”; adding that “[t]hese principles do not decide the present case but do inform its analysis, for the
issues possess significant parallels.”).
149 Id. at 352.
150 See id. at 352-57.
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VII’s antiretaliation and “motivating factor” provisions,151 and “the design and structure of the
statute as a whole.”152 The Court concluded, “based on these textual and structural indications,”
that Title VII retaliation claims “must be proved according to traditional principles of but-for
causation.”153
Bostock v. Clayton County (2020): Another View of Section 703(a)(1)
In its 2020 Bostock decision, the Court revisited Title VII’s antidiscrimination provision, Section
703(a)(1), this time reading the provision as incorporating “but for” causation.154 In the Court’s
1989 Price Waterhouse decision, however, six Justices had previously construed “because” in
Section 703(a)(1) to require that a plaintiff show that a protected trait was a “motivating” or
“substantial” factor in the challenged employment action.155 Making no reference to this aspect of
Price Waterhouse, the Court in Bostock pointed to its decisions in Gross and Nassar, stating that
“as this Court has previously explained, ‘the ordinary meaning of ‘because of’ is ‘by reason of’ or
‘on account of.’”156 “In the language of law,” the Court continued, “this means that Title VII’s
‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation.”157 With
little further discussion,158 the Court read Title VII’s antidiscrimination provision to incorporate
“but for” causation, emphasizing the text “because of” interpreted in light of common law tort
principles.159

151 See id. at 352-53 (comparing the manner in which these two provisions refer or relate to “unlawful employment
practice[s]” under Title VII).
152 See id. at 353-56.
153 Id. at 360. See also id. at 362 (“The text, structure, and history of Title VII demonstrate that a plaintiff making a
retaliation claim under § 2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged
adverse action by the employer.”).
154 See Bostock, 140 S.Ct. at 1739 (pointing to “because of” in Title VII’s antidiscrimination provision, 42 U.S.C. §
2000e-2(a)(1), and concluding that incorporated “but for” causation). See 42 U.S.C. § 2000e-2(a)(1) (making it an
“unlawful employment practice” for an employer to take certain employment-related actions against an individual
“because of such individual’s race, color, religion, sex, or national origin”).
155 See Price Waterhouse, 490 U.S. at 244-45, 258. See also id. at 259-60 (White, J., concurring in judgment) (agreeing
that the plaintiff’s burden is “to show that the unlawful motive was a substantial factor in the adverse employment
action”; id. at 276 (O’Connor, J., concurring in judgment) (stating that “a disparate treatment plaintiff must show by
direct evidence that an illegitimate criterion was a substantial factor in the decision”). See generally supra section
“Price Waterhouse v. Hopkins (1989): Introducing “Motivating Factor” Causation.”
156 Bostock, 140 S.Ct. at 1739 (citing Nassar, 570 U.S. at 346, 350, 360; Gross, 557 U.S. at 176).
157 Id. (citing Nassar, 570 U.S. at 346, 360).
158 While the Court did not discuss the Price Waterhouse decision, it referred to Congress’s 1991 amendment codifying
the “motivating factor” causation standard, in the context of suggesting that “Congress has moved in the opposite
direction” of causation requirements that would demand a showing that a prohibited factor be the sole or primary cause
of the challenged action. See Bostock, 140 U.S. at 1739-40. See also infra note 162.
159 See supra note 156. Cf. Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, 576 U.S. 519, 535
(2015) (addressing and rejecting the argument that the phrase “because of race” in a Fair Housing Act provision
“foreclose[d] disparate impact liability” because that text required a showing that race was a reason for the action;
pointing to the Court’s precedent interpreting Title VII and the Age Discrimination in Employment Act (ADEA) and
stating that “[b]oth Title VII and the ADEA contain identical ‘because of’ language, see 42 U.S.C. § 2000e–2(a)(2); 29
U.S.C. § 623(a)(2), and the Court nonetheless held those statutes impose disparate-impact liability.”) (citations
omitted).
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The Potential Role of Causation in Other Statutes
As the above cases illustrate, the Supreme Court has taken different approaches for determining
how to construe statutory text in antidiscrimination provisions for causation purposes.160 Given
the differing rationales reflected in these cases, it is possible that lower courts may also approach
the analysis of causation standards in a range of ways.161
In addition, how courts resolve questions of causation may also affect their analyses concerning
whether and how Bostock might apply when interpreting other antidiscrimination statutes. As
discussed earlier, when interpreting Section 703(a)(1) of Title VII,162 the Court in Bostock
repeatedly emphasized that when an employer discriminates against an individual “because of” an
individual’s sexual orientation or gender identity, at least one “but for” cause of that
discrimination is consideration of the individual’s “sex.”163 While the termination of a gay
employee may be based on a combination of both the individual’s “sex and attraction,”164 that
combination, the Court explained, is sufficient to trigger Title VII liability because the
individual’s sex was one “but for” cause of the termination.165 Rooting its analysis in the “but for”
standard, the Court in Bostock concluded that Title VII’s prohibition of discrimination “because
of…sex” covers claims alleging discrimination based on sexual orientation and gender identity.166
The Court’s exclusive emphasis on “but for” causation, however, leaves it an open question as to
whether a statute that incorporates a different causation standard might alter the legal analysis. As
discussed in more detail below, to the extent a lower court considers causation to determine
whether to apply Bostock to another statute, it appears that a statute incorporating a less stringent
causation standard than “but for” causation may be amenable to an interpretation that it too, like
Title VII in Bostock, encompasses sexual orientation and gender identity-based claims. A
provision incorporating a more demanding causation standard than “but for,” however, would

160 See supra note 159.
161 Compare Clerveaux v. E. Ramapo Cent. Sch. Dist., 984 F.3d 213, 230-232 (2d Cir. 2021) (rejecting argument made
in reliance on Bostock that Section 2 of the Voting Rights Act, which prohibits “denial or abridgement of the right to
vote ‘on account of race or color,’” requires a showing of “but for” causation) with Thomas v. CalPortland Co., 993
F.3d 1204, 1209-10 (9th Cir. 2021) (holding that text “because” in the antidiscrimination provision of the Federal Mine
Safety and Health Act incorporates “but for” causation; citing and discussing the Bostock decision to support its
conclusion, among other cases). See also, e.g., Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021)
(rejecting argument that Bostock altered the meaning of “but for” causation under the Age Discrimination in
Employment Act from requiring that age be the “determinative” reason for the alleged discrimination to age being only
one “but for” cause).
162 See Bostock, 140 S.Ct. at 1740 (stating that “because nothing in our analysis depends on the motivating factor test,
we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive,
path to relief under Title VII. § 2000e–2(a)(1)”).
163 See id. at 1741-43. See also 42 U.S.C. § 2000e-2(a)(1) (making it an unlawful employment practice to “fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin”).
164 See Bostock, 140 S.Ct. at 1748 (“So, for example, when it comes to homosexual employees, male sex and attraction
to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also
get an employee fired does no more than show the same outcome can be achieved through the combination of different
factors. In either case, though, sex plays an essential but-for role.”) (emphasis added).
165 See supra note 164. See also, e.g., Bostock, 140 S.Ct. at 1739 (“So long as the plaintiff’s sex was one but-for cause
of that decision, that is enough to trigger the law.”).
166 See id. at 1753.
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appear to raise legal questions concerning Bostock’s applicability to such statutes. These
scenarios are explored in two illustrations discussed below.
One illustration of a less stringent causation standard than “but for” causation is the “motivating
factor” causation standard, which the Court in Bostock described as “more forgiving” than “but
for.”167 This standard requires a plaintiff to show that an individual’s protected trait “played a
motivating part” in an alleged discriminatory action, even if other factors also played a role.168
Given the Court’s characterization of “motivating factor” as an easier standard to meet than “but
for” causation, a party could argue under Bostock that if an individual’s sex is a “but for” cause of
discrimination based on sexual orientation or gender identity, then consideration of sex must
necessarily play a motivating part in discrimination based on sexual orientation or gender identity
as well. If a court adopted such a rationale, then it might thus conclude that a statutory provision
that incorporates “motivating factor” causation and which expressly prohibits sex discrimination,
also prohibits entities from taking certain actions based on an individual’s sexual orientation or
gender identity. While the Court in Bostock expressly stated that “nothing in [its] analysis
depends on the motivating factor” standard,169 it appears that conduct that satisfies the “but for”
causation standard set out in Bostock also likely satisfies the more lenient “motivating factor”
standard.
A statute that clearly incorporates a stricter causation standard than “but for,” however, could
raise some uncertainty concerning whether such statutes are amenable to an interpretation similar
to the Court’s construction of Title VII in Bostock. One example of a more difficult standard to
satisfy than “but for” is “primary” causation—a standard repeatedly mentioned in the Bostock
decision as a point of contrast to “but for” causation.170 The “primary” causation standard, as
applied to a statute that expressly prohibits sex discrimination, might require a plaintiff to show
that an individual’s sex was the primary or main cause of the discriminatory action, though not
necessarily the sole cause.171
Referring to this standard in the Bostock decision, Justice Gorsuch responded to the defendants’
contention that Title VII liability only addressed conduct where an individual’s sex was
dispositive in the employment decision.172 Gorsuch observed that the “employers might be onto

167 See id. at 1739-40 (referring to the “motivating factor” standard and stating that “[u]nder this more forgiving
standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.”).
168 See Price Waterhouse, 490 U.S. at 244. See also Nassar, 570 U.S. at 343 (describing the “motivating factor”
causation standard as requiring a showing that “the motive to discriminate was one of the employer’s motives, even if
the employer also had other, lawful motives that were causative in the employer’s decision.”).
169 See id. at 1740 (stating that “nothing in our analysis depends on the motivating factor test”).
170 Justice Gorsuch, writing for the Court in Bostock, repeatedly stated that Section 703(a)(1) does not require plaintiffs
to show that sex was the primary cause of the alleged discriminatory action. See Bostock, 140 S.Ct. at 1739 (noting the
absence in Title VII of the terms “‘primarily because of’ to indicate that the prohibited factor had to be the main cause
of the defendant’s challenged employment decision”); id. at 1744 (stating that under Title VII, “the plaintiff’s sex need
not be the sole or primary cause of the employer’s adverse action” and accordingly, that it is of “no significance [under
Title VII] if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even
play a more important role in the employer’s decision”). See also id. at 1745 (discussing “the kind of cause the law is
looking for in a Title VII case” and contrasting an employee’s likely focus on “the primary or most direct cause” of a
termination decision with “Title VII’s legal analysis, which asks simply whether sex was a but-for cause”).
171 See generally, e.g., Brown v. Plata, 563 U.S. 493, 517, 525 (2011) (in the context of establishing a violation of a
provision in the Prison Litigation Reform Act of 1995, stating that “primary” causation requires a showing that a
condition or event was the “foremost, chief, or principal cause of the violation” but not “the only cause”). See also
Bostock, 140 S.Ct. at 1739 (describing the statutory phrase “‘primarily because of’” as indicating “that the prohibited
factor had to be the main cause” of the challenged action).
172 See id. at 1747-48 (describing a hypothetical test offered by the employer “to isolate whether a plaintiff’s sex caused
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something . . . if the statute applied only when sex is the sole or primary reason for an employer’s
challenged adverse employment action.”173 The Court, however, concluded that “everything we
know about the statute” demonstrates that Title VII clearly does not incorporate primary or sole
causation.174
These observations in the decision, and the underlying rationale of the Court’s analysis in
Bostock, could be read to suggest that a statute that prohibits sex discrimination—but which
employs a primary causation standard—may not be interpreted to encompass claims alleging
sexual orientation or gender identity-based discrimination. Rather, under a primary causation
standard, it might be argued that if an individual is discriminated against because of sexual
orientation, the individual’s sexual orientation was the primary cause of the conduct, not the
individual’s sex. Put another way, because a statute incorporating primary causation would
require that the individual’s sex was the principal cause for the action, a showing that an
individual’s sex was one “but for” cause of sexual orientation-based discrimination would
arguably not be sufficient to trigger that statute’s prohibition.
Similarly, with respect to gender identity-based discrimination, a party might argue that such a
statute may not be interpreted to encompass such claims on the rationale that the principal cause
of gender identity-based discrimination is not the individual’s sex per se. Rather, it might be
argued that the primary cause of such discrimination is the fact of the individual’s sex assigned at
birth differing from his or her gender identity,175 or actions undertaken by an individual in relation
to gender transition.176
In light of the above, if a court were to read a statute to incorporate primary causation, it might
conclude that the standard forecloses interpreting a prohibition of sex discrimination to
encompass sexual orientation or gender identity-based discrimination claims. While the Court in
Bostock did not expressly address how its analysis might differ under a primary causation
standard, the underlying reasoning of the decision could lead a court to interpret a statute with a
heightened causation standard differently.

the dismissal”). See also id. at 1748 (“At bottom, the employers’ argument unavoidably comes down to a suggestion
that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow.”).
173 See id. at 1748.
174 See id. (stating that the statute does not “care if other factors besides sex contribute to an employer’s discharge
decision” and that the defendants’ arguments suggesting that Title VII liability requires sole or primary causation “is at
odds with everything we know about the statute”). Elsewhere in the decision, Justice Gorsuch construed the
defendants’ arguments to suggest creating a stricter Title VII causation standard only for claims alleging discrimination
based on sexual orientation or gender identity—an argument the Court rejected on the basis that this would constitute a
departure from the clearly applicable “but for” causation standard that would ordinarily apply. See id. at 1749
(describing the “simple test” that typically applies in Title VII analyses and stating that “the employers must scramble
to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or
transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly”).
175 See generally, e.g., Doe by and through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018) (“The
term ‘transgender’ refers to a person whose gender identity does not align with the sex that person was determined to
have at birth.”).
176 See generally, e.g., Nat’l Center for Transgender Equality, Understanding Transgender People: The Basics (July 9,
2016), https://transequality.org/issues/resources/understanding-transgender-people-the-basics (discussing gender
transition and stating that “steps in a gender transition may or may not include changing your clothing, appearance,
name, or the pronoun people use to refer to you (like ‘she,’ ‘he,’ or ‘they’). If they can, some people change their
identification documents, like their driver’s license or passport, to better reflect their gender. And some people undergo
hormone therapy or other medical procedures to change their physical characteristics and make their body match the
gender they know themselves to be.”).
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Importantly, both scenarios explored above—concerning “motivating factor” and “primary”
causation— contemplate questions of statutory interpretation absent legislative amendment or
newly enacted legislation expressly addressing sexual orientation or gender identity as protected
characteristics. If Congress enacted express amendments or legislation in either direction—to
either include or exclude sexual orientation or gender identity as characteristics protected under a
statute—such legislative direction would appear to eliminate the need for a court to consider a
statute’s causation standard to resolve a statute’s scope of coverage.
Potential Implications of Bostock for Title IX
Having surveyed two considerations that may inform whether a federal court applies or declines
to apply Bostock’s reasoning to other statutes—a similarly-phrased mandate prohibiting sex
discrimination and “but for” causation—this section considers these and other factors with a
focus on one statute in particular—Title IX of the Education Amendments of 1972. While the
Bostock decision has prompted questions about its implications for various civil rights statutes,177
Title IX has been the subject of significant attention.178 In addition, whether Title IX’s prohibition
of sex discrimination in federally-funded education programs extends to gender identity has been
the subject of controversy from well before the Bostock decision. During the Obama
Administration in 2016, for instance, OCR and the Civil Rights Division of the Department of
Justice jointly issued a “Dear Colleague” Letter which instructed schools that a student’s gender
identity is their sex for Title IX purposes.179 That policy sparked debate and litigation over the
meaning of Title IX before the Court issued its decision in Bostock.180 This section thus considers
possible factors that courts might weigh to determine whether to apply Bostock’s reasoning to
interpret the scope of another statute, using Title IX as a potential illustration.
This section first examines Supreme Court precedent addressing Title IX in relation to Title VII.
Because federal courts sometimes look to jurisprudence interpreting Title VII to inform their
interpretation of other antidiscrimination statutes, this consideration may also shape how courts
determine whether to apply Bostock to interpret another statute. As discussed in more detail
below, the Court’s precedent interpreting Title VII and Title IX reflects the Court at times
drawing strong similarities between the two while at other times emphasizing strong distinctions.
Following that discussion, the report briefly examines federal appellate court precedent
addressing another important consideration—causation applicable to Title IX claims. That
precedent reflects that the issue of causation under Title IX remains unresolved among federal
courts. This section then discusses two decisions in which federal appellate courts have applied

177 See, e.g., Julie Moreau, Supreme Court’s LGBTQ Ruling Could Have ‘Broad Implications,’ Legal Experts Say,
NBC NEWS (June 23, 2020), https://www.nbcnews.com/feature/nbc-out/supreme-court-s-lgbtq-ruling-could-have-
broad-implications-legal-n1231779.
178 See, e.g., Wesley Whistle, What Does Today’s LGBT Supreme Court Ruling Mean for Schools?, FORBES (June 15,
2020), https://www.forbes.com/sites/wesleywhistle/2020/06/15/what-does-todays-lgbt-supreme-court-ruling-mean-for-
schools/?sh=66d2ad974558.
179 Dear Colleague Letter on Transgender Students, Dep’t of Justice Civil Rights Division, Dep’t of Educ. Office for
Civil Rights (May 13, 2016).
180 Compare Texas v. United States, 201 F. Supp. 3d 810, 836 (N.D. Tex. 2016) (ruling that ED failed to comply with
the Administrative Procedure Act when issuing the 2016 Letter and that the Letter contradicted Title IX regulations),
with G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016) (extending deference under
Auer v. Robbins, 519 U.S. 452 (1997) to ED’s similar interpretation of Title IX regulations contained in a 2015 opinion
letter). The Gloucester County School Board decision was vacated and remanded to the Fourth Circuit by the Supreme
Court after a new presidential administration issued a guidance document rescinding the 2015 opinion letter, as well as
another Dear Colleague letter from 2016. Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017).
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Bostock to interpret Title IX to encompass claims alleging discrimination based on sexual
orientation and gender identity.
Supreme Court Precedent Addressing Title IX in Relation to Title
VII
The Supreme Court has repeatedly considered aspects of Title IX in relation to Title VII. When
doing so, the Court has at different turns highlighted “vast” differences between the two
statutes181 while elsewhere importing certain aspects of its Title VII precedent to analyze Title IX
claims.182
The Court in its 1992 decision Franklin v. Gwinnett County Public Schools,183 for example, drew
upon its Title VII precedent recognizing sexual harassment as a cognizable form of sex
discrimination to similarly recognize sexual harassment as actionable under Title IX.184 The Court
in Franklin, citing an earlier Title VII decision, Meritor Savings Bank, FSB v. Vinson,185
expressed the view that Title IX’s mandate prohibiting discrimination on the basis of sex should
be interpreted to prohibit sexual harassment by a teacher against a student, just as the Court had
interpreted Title VII to prohibit sexual harassment by a supervisor against a subordinate.186
A few years later, however, in its 1998 decision Gebser v. Lago Vista Independent School
District,187 the Court rejected arguments that such Title IX harassment claims should be analyzed
in the same way as harassment claims under Title VII,188 citing distinctions between the two
statutes189 and Title IX’s administrative enforcement schema.190 The Gebser Court created a
different legal standard for establishing liability under Title IX for harassment—that of deliberate

181 See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (stating that Title VII “is a vastly different
statute from Title IX,” and discussing various distinctions between the two).
182 See, e.g., infra note 186.
183 503 U.S. 60 (1992).
184 See generally Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 283 (1998) (explaining that its reference in
Franklin to its Title VII Meritor decision “was made with regard to the general proposition that sexual harassment can
constitute discrimination on the basis of sex under Title IX”).
185 477 U.S. 57 (1986). The Court in Meritor held that sexual harassment constituted actionable sex discrimination
prohibited by Title VII. Id. at 64.
186 Franklin, 503 U.S. at 75 (stating that “‘when a supervisor sexually harasses a subordinate because of the
subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.’ We believe the same rule should apply when a
teacher sexually harasses and abuses a student.”) (quoting Meritor, 477 U.S. at 64).
187 524 U.S. 274 (1998).
188 See id. at 282-85 (discussing petitioner’s arguments that the legal standards used in Title VII harassment cases based
on agency principles should likewise apply to Title IX and rejecting those arguments; concluding that “it would
‘frustrate the purposes’ of Title IX to permit a damages recovery against a school district for a teacher’s sexual
harassment of a student based on” agency principles). See also Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 643 (1999) (“As an initial matter, in Gebser we expressly rejected the use of agency principles in
the Title IX context, noting the textual differences between Title IX and Title VII.”) (citing Gebser, 524 U.S., at 283).
189 See Gebser, 524 U.S. at 283-84 (distinguishing Title IX from Title VII on the basis that the text of Title IX makes
no reference to “agent,” as the text of Title VII does, and contrasting the judicially implied private right under Title IX
with Title VII’s provisions expressly providing for a private right of action and “the particular situations in which
damages are available as well as the maximum amounts recoverable”).
190 See id. at 287-90 (citing various features of Title IX’s administrative enforcement schema to conclude that, “in the
absence of further direction from Congress,” the framework for analyzing a Title IX harassment claim for damages
“should be fashioned along the same lines” as the administrative enforcement schema, which is “predicated upon notice
to an ‘appropriate person’ and an opportunity to rectify any violation”).
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indifference—in light of its precedent addressing municipal liability under another statute, 42
U.S.C. § 1983.191 And in rejecting the application of a Title VII analysis to Title IX liability, the
Court instead highlighted similarities between Title IX and another title of the 1964 Civil Rights
Act—Title VI.192 The Court underscored the shared “contractual framework” of Title VI and Title
IX as legislation enacted based on Congress’s Spending Clause authority, which “condition[s] an
offer of federal funding on a promise by the recipient not to discriminate,”193 and contrasted those
statutes with Title VII, “which is framed in terms not of a condition but of an outright
prohibition.”194
While the Court in Gebser distinguished Title IX from Title VII, the Court in its 1999 decision
Davis Next Friend LaShonda D. v. Monroe County Bd. of Education195 returned in part to draw
upon its Title VII precedent when addressing the standard for Title IX liability for a certain subset
of harassment claims—those involving harassment committed by one student against another.196
For this category of Title IX harassment claims, the Court discussed unique considerations
concerning the scope of liability for harassment among students in a school setting,197 and held
that—in addition to showing actual notice and deliberate indifference required by Gebser—
plaintiffs would have to make an additional showing.198 The Court concluded that plaintiffs would
also have to establish harassment that “is so severe, pervasive, and objectively offensive, and that

191 Id. at 290-91 (concluding that to establish liability under Title IX for a teacher’s sexual harassment of a student, the
recipient’s “response must amount to deliberate indifference to discrimination” and likening its adoption of that
standard to Title IX to its “adoption of a deliberate indifference standard for claims under [42 U.S.C.] § 1983 alleging
that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation.”). The
Court in Gebser also identified “actual notice” to an “appropriate person” as requisite components of a Title IX
harassment claim. See id. at 290-91 (describing “an appropriate person” and “actual notice,” and holding that “in cases
like this one that do not involve official policy of the recipient entity,” “a damages remedy will not lie under Title IX
unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective
measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails
adequately to respond”). See also id. at 292-93 (stating that “we will not hold a school district liable in damages under
Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference”). For further
discussion of the standards governing Title IX liability in private rights of action for harassment, see CRS Report
R45685, Title IX and Sexual Harassment: Private Rights of Action, Administrative Enforcement, and Proposed
Regulations, by Jared P. Cole and Christine J. Back.
192 Gebser, 524 U.S. at 286-87 (explaining that Title IX “was modeled after Title VI of the Civil Rights Act of 1964”).
193 Id. at 286 (stating that the “two statutes operate in the same manner, conditioning an offer of federal funding on a
promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the
recipient of funds.”). See also id. at 287 (stating that “Title IX’s contractual nature has implications for our construction
of the scope of available remedies” under that statute).
194 Id. at 286 (“That contractual framework distinguishes Title IX from Title VII, which is framed in terms not of a
condition but of an outright prohibition.”). See also id. at 286-87 (contrasting the operation of Title IX with the scope
of Title VII, which “applies to all employers without regard to federal funding and aims broadly to ‘eradicat[e]
discrimination throughout the economy’”; also stating that while Title VII “seeks to ‘make persons whole for injuries
suffered through past discrimination,’” “Title IX focuses more on ‘protecting’ individuals from discriminatory practices
carried out by recipients of federal funds”) (internal citations omitted).
195 526 U.S. 629 (1999).
196 See id. at 639 (addressing the issue of “whether a recipient of federal education funding may be liable for damages
under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment.”).
197 See id. at 644-46 (explaining that in student-on-student harassment cases, certain factors “combine to limit a
recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser
and the context in which the known harassment occurs”).
198 Id. at 650 (in addition to establishing a recipient’s deliberate indifference and actual knowledge, requiring plaintiffs
to make an additional showing as to the harassment itself and victims’ “access to the educational opportunities or
benefits provided by the school”).
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so undermines and detracts from the victims’ educational experience, that the victim-students are
effectively denied equal access to an institution’s resources and opportunities.”199
In formulating this standard, the Court looked both to the text of Title IX’s antidiscrimination
provision,200 and to its decision in Meritor Savings Bank,201 which established the “severe or
pervasive” legal standard applicable to Title VII harassment claims.202 Beyond citing to Meritor,
however, the Court offered no additional discussion on its reliance upon or modification of the
Title VII “severe or pervasive” standard to Title IX.203 Nonetheless, the Court’s analysis reflects
its attention to the text of Title IX, the educational context and actors at issue in student-on-
student harassment claims,204 as well as the adaptation of a key concept from Title VII harassment
jurisprudence.205
More recently, the Court emphasized what it viewed as critical differences between Title VII and
Title IX. In its 2005 decision Jackson v. Birmingham Board of Education,206 the Court addressed
the question of whether Title IX’s mandate encompasses claims alleging retaliation for reporting
sex discrimination brought in a private suit.207 Focusing its analysis on the text of Title IX,208 the
Court reasoned that because retaliation for reporting sex discrimination is a form of intentional
discrimination based on sex, the text of Title IX prohibits such retaliation.209 The Court rejected

199 Id. at 651.
200 Id. at 650 (quoting the text of 20 U.S.C. § 1681(a) and stating that the “statute makes clear that, whatever else it
prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender”;
concluding that in light of the statutory text, “funding recipients are properly held liable in damages only where they
are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits
provided by the school.”). See also id. (discussing the text of Title IX as reflecting that “students are not only protected
from discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits
of’ any ‘education program or activity receiving Federal financial assistance’”) (quoting 20 U.S.C. § 1681(a)).
201 See id. at 651 (using the signal cf. to cite to Meritor, 477 U.S. at 67).
202 See Meritor, 477 U.S. at 67 (in the context of Title VII, stating that “[f]or sexual harassment to be actionable, it must
be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working
environment.’”) (citations omitted).
203 See Davis, 526 U.S. at 650-51 (reflecting no further mention or discussion of Meritor). Following its citation to
Meritor, the Court quoted from one other Title VII decision, among other references, to illustrate relevant
considerations under its modified Title IX “severe or pervasive” standard. See id. at 651 (explaining that whether
conduct “rises to the level of actionable ‘harassment’ thus ‘depends on a constellation of surrounding circumstances,
expectations, and relationships’) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)). See also
Davis, 526 U.S. at 651 (discussing considerations “including, but not limited to, the ages of the harasser and the victim
and the number of individuals involved,” citing DEP’T OF ED, OCR TITLE IX GUIDELINES 12041–42, and cautioning
that courts “must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a
manner that would be unacceptable among adults.”)
204 See supra notes 197-98. See also Davis, 526 U.S. at 651-52.
205 For further discussion of case law interpreting the “severe or pervasive” standard under Title VII, see CRS Report
R45155, Sexual Harassment and Title VII: Selected Legal Issues, by Christine J. Back.
206 544 U.S. 167 (2005).
207 Id. (“We consider here whether the private right of action implied by Title IX encompasses claims of retaliation. We
hold that it does where the funding recipient retaliates against an individual because he has complained about sex
discrimination.”).
208 Id. at 178 (when describing the basis of its holding in Jackson, stating that “the text of Title IX prohibits a funding
recipient from retaliating against a person who speaks out against sex discrimination, because such retaliation is
intentional ‘discrimination’ ‘on the basis of sex.’ We reach this result based on the statute’s text.”).
209 Id. at 173-74 (discussing the text of Title IX and its earlier precedent addressing the statute and concluding that
“when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes
intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX”) (emphasis in original). See also id. at 175
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arguments that it should read Title IX in light of Title VII, stating that the fact that Title VII
contains a separate antiretaliation provision while Title IX does not was not dispositive on the
question of whether Title IX also reached retaliation claims.210 Rather, the Court described Title
VII as “a vastly different statute from Title IX,”211 contrasting Title IX’s judicially implied private
right with Title VII’s express private right.212 The Court also emphasized the different content and
structure of their respective prohibitions, stating that while Title IX is a “broadly written general
prohibition” followed by a series of narrow exceptions to that prohibition, Title VII’s provisions
“spell[] out in greater detail the conduct that constitutes discrimination in violation of that
statute.”213 Accordingly, the Court concluded, “[b]ecause Congress did not list any specific
discriminatory practices when it wrote Title IX, its failure to mention one such practice does not
tell us anything about whether it intended that practice to be covered.”214 Instead, the Court
emphasized the timing of Title IX’s passage several years after a decision interpreting another
statute, 42 U.S.C. § 1982, to encompass retaliation claims absent an express textual reference to
retaliation.215 The Court reasoned that the drafters of Title IX would have been aware of this
earlier decision, and intended Title IX to similarly be understood to encompass retaliation
claims.216
As the above precedent reflects, the Court has at times drawn from its Title VII jurisprudence to
inform its analysis of Title IX, while at other junctures distinguishing between the two statutes
given the Spending Clause basis of Title IX, the structure of Title IX’s prohibition and exceptions,
its judicially implied private right, and its administrative enforcement scheme. This precedent
reflects that the Court itself has neither reflexively adopted nor rejected the potential applicability
of Title VII jurisprudence to Title IX. Rather, when interpreting Title IX, the Court has drawn
from or developed modifications from its Title VII precedent, while also looking to other statutes
to inform its Title IX analyses, most notably Title VI of the Civil Rights Act of 1964.217

(“‘Discrimination’ is a term that covers a wide range of intentional unequal treatment; by using such a broad term,
Congress gave the statute a broad reach.”).
210 Id. at 175.
211 Id. (“Title VII . . . is a vastly different statute from Title IX, and the comparison the Board urges us to draw is
therefore of limited use.”) (citing Gebser, 524 U.S., at 283–284, 286–287).
212 Id.
213 Id. (listing various examples of conduct that constitute discriminatory employment practices under Title VII in 42
U.S.C. §§ 2000e–2 and 2000e–3).
214 Id.
215 Id. at 176-77 (pointing to Title IX’s enactment three years after Sullivan v. Little Hunting Park, Inc., 396 U.S. 229,
90 (1969), and describing Sullivan as a case in which the Court “interpreted a general prohibition on racial
discrimination to cover retaliation against those who advocate the rights of groups protected by that prohibition,” in the
context of a case brought under 42 U.S.C. § 1982 by a white plaintiff “who spoke out against discrimination toward
one of his [black] tenants and who suffered retaliation as a result”).
216 Jackson, 544 U.S. at 176-77 (stating that its Sullivan decision “provides a valuable context for understanding [Title
IX],” and quoting earlier Title IX precedent in which the Court had previously stated that “‘it is not only appropriate
but also realistic to presume that Congress was thoroughly familiar with [Sullivan] and that it expected its enactment
[of Title IX] to be interpreted in conformity with [it].’”) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 699
(1979)).
217 The Supreme Court has repeatedly emphasized similarities between Title VI and Title IX in its precedent. See, e.g.,
Gebser, 524 U.S. at 286 (describing Title VI and Title IX as “parallel,” except that Title VI “prohibits race
discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education
programs”); Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (stating that “Title IX, like its model Title VI,
sought to accomplish two related, but nevertheless somewhat different, objectives” to “avoid the use of federal
resources to support discriminatory practices” and “to provide individual citizens effective protection against those
practices”; explaining that “[b]oth of these purposes were repeatedly identified in the debates on the two statutes”). See
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Title IX and Unsettled Questions of Causation
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.”218 As discussed earlier,
given the Court’s emphasis in Bostock on the “but for” causation standard,219 a lower court might
look to whether this mandate also employs the “but for” causation standard, or uses a different
standard, to determine whether to apply Bostock to its interpretation of Title IX.220 When it comes
to Title IX, however, the Supreme Court has not expressly addressed causation,221 and few federal
appellate courts have reached or resolved the question of which causation standards correspond to
the statute’s mandates, or whether different causation standards apply to different types of claims
under Title IX.222
Addressing retaliation claims under Title IX, for example, the Seventh Circuit appears to apply
the “but for” causation standard,223 while the First Circuit has recently observed that the
applicable causation standard for Title IX retaliation claims remains unclear.224 The Fifth Circuit,

also Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009) (“Congress modeled Title IX after Title VI of the
Civil Rights Act of 1964, and passed Title IX with the explicit understanding that it would be interpreted as Title VI
was”) (citations omitted). See generally, e.g., Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994) (observing that
“courts have interpreted Title IX by looking to the body of law developed under Title VI, as well as the caselaw
interpreting Title VII”). Cf. Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir. 2012) (noting that “the legislative
history of Title IX ‘strongly suggests that Congress meant for similar substantive standards to apply under Title IX as
had been developed under Title VII’”) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 897 (1st Cir.1988)).
218 20 U.S.C. § 1681(a). This prohibition is subject to exceptions enumerated in 20 U.S.C. § 1681(a)(1)–(9). See also id.
§§ 1686, 1688.
219 See Bostock, 140 S.Ct. at 1739-40 (after examining the text “sex” as “a starting point,” stating that “[t]he question
isn’t just what ‘sex’ meant, but what Title VII says about it”; describing as “most notabl[e]” the statute’s prohibition
against taking certain actions “because of” sex and the provision’s causation standard).
220 See supra section “The Potential Role of Causation in Other Statutes.”
221 See generally, e.g., Theidon v. Harvard Univ., 948 F.3d 477, 506 (1st Cir. 2020) (“Neither the Supreme Court nor
our court has resolved the question of whether [University of Texas Southwestern Medical Center v.] Nassar’s holding
on [but for] causation extends to Title IX retaliation claims”); Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th Cir.
2018) (“Neither the Supreme Court nor this Court has established a framework for analyzing Title IX challenges to
university disciplinary proceedings.”).
222 See supra note 221. See also infra notes 223-31. The Supreme Court has addressed two liability standards under
Title IX—both relating to a recipient’s “deliberate indifference” to sexual harassment. See supra “Supreme Court
Precedent Addressing Title IX in Relation to Title VII.” Federal courts apply these standards to Title IX harassment
claims. See, e.g., I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 368 (5th Cir. 2019) (setting out the standard for
establishing a Title IX claim alleging student-on-student harassment; stating that a “school district that receives federal
funds may be liable for student-on-student harassment if the district (1) had actual knowledge of the harassment, (2) the
harasser was under the district’s control, (3) the harassment was based on the victim’s sex, (4) the harassment was so
severe, pervasive, and objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity
or benefit, and (5) the district was deliberately indifferent to the harassment.”) (citation and internal quotation marks
omitted); Doe v. St. Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012) (with respect to a Title IX claim alleging a
teacher’s sexual harassment of a student, stating that the “plaintiff must prove that 'an official of the school district who
at a minimum has authority to institute corrective measures . . . has actual notice of, and is deliberately indifferent to,
the teacher’s misconduct.’”) (citing Gebser, 524 U.S. at 277).
223 See Doe v. Columbia Coll. Chicago, 933 F.3d 849, 857 (7th Cir. 2019) (listing as one of the elements of a Title IX
retaliation claim a showing that “there was a but-for causal connection” between a plaintiff’s protected activity and
alleged adverse action) (citing Burton v. Bd. of Regents of the Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017));
Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 388 (7th Cir. 2012) (“The Title VII retaliation framework applies
with equal force to retaliation claims brought under Title IX.”)
224 See Theidon, 948 F.3d at 506-508 (observing that the First Circuit has not “resolved the question of whether [the
Supreme Court’s holding in Nassar] on causation extends to Title IX retaliation claims given the import of Title VII to
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in a decision from earlier this year, clarified that its precedent addressing Title IX retaliation
claims does not require a showing that a plaintiff’s report of sex discrimination was the “sole”
cause of an alleged retaliatory action,225 and instead generally described the requisite showing as
a “‘causal connection’ between the Title IX complaint” and the challenged action.226 The Ninth
Circuit, while expressly drawing upon Title VII’s antiretaliation framework to inform its analysis
of Title IX retaliation claims,227 has nevertheless described the requisite showing for Title IX
retaliation claims as the demonstration of a “causal link.”228
Federal appellate courts have also expressed different views on the causation standard for Title IX
claims alleging that a university’s disciplinary proceeding or decision was biased by sex
discrimination. In a decision from earlier this year, for example, the Fourth Circuit concluded that
“‘on the basis of sex’ requires ‘but-for’ causation in Title IX claims alleging discriminatory school
disciplinary proceedings.”229 The Fourth Circuit cited the Supreme Court’s decisions in Bostock,
Gross, and Nassar, and its own circuit precedent, to construe Title IX’s prohibition to incorporate
“but for” causation.230 While the court’s reasoning suggests that it might interpret all Title IX
claims under this causation standard, the court repeatedly noted that its analysis specifically
addressed causation in those Title IX claims alleging discriminatory disciplinary proceedings.231

the adjudication of such claims”; concluding that it “need not resolve that issue today” because the plaintiff had failed
to establish causation under the “but for,” “motivating factor,” or proximate causation standards).
225 See Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1117-19 (5th Cir. 2021) (addressing a challenge to a jury
instruction on the causation standard for Title IX retaliation claims and stating that the circuit precedent cited by both
parties “did not announce a sole causation standard for Title IX retaliation claims”; instead, construing its precedent as
“suggest[ing] that the causation standard for Title IX claims should be the same as the causation standard for Title VII
claims while clarifying that complaints about conduct barred by Title VII could not form the basis of a Title IX claim”).
226 See Taylor-Travis, 984 F.3d at 1119 and n. 43 (concluding that a new trial on the plaintiff’s Title IX retaliation
claim was not warranted “because the district court’s instruction ‘substantially covered’ the correct standard: that there
must be a ‘causal connection’ between the Title IX complaint and the adverse employment action”) (citations omitted).
Cf. id. at n. 43 (citing several Fifth Circuit cases either requiring “a causal link,” or suggesting that because the “anti-
retaliation provision of title IX is similar to those of title VII and the ADEA,” it should be similarly interpreted).
227 See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir. 2014) (stating that the Ninth Circuit
“appl[ies] to Title IX retaliation claims ‘the familiar framework used to decide retaliation claims under Title VII’”).
228 See id. 867, 869 (requiring a showing of a “causal link” to establish a prima facie case of retaliation under Title IX;
stating that “[w]e construe the causal link element of the retaliation framework ‘broadly’ such that “a plaintiff ‘merely
has to prove that the protected activity and the [adverse] action are not completely unrelated.’”).
229 Sheppard v. Visitors of Virginia State Univ., No. 19-2452, 2021, WL 1227809, at *4 (4th Cir. Apr. 2, 2021).
230 See id. (stating that “the Supreme Court and our Circuit have held that the same or similar language requires ‘but-
for’ causation.”) (citing Bostock, 140 S. Ct. 1731; Nassar, 570 U.S. at 351–52; Gross, 557 U.S. at 176; Grimm v.
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), cert denied, -- S.Ct. -- (2021); Gentry v. E. W. Partners
Club Mgmt. Co. Inc., 816 F.3d 228, 235–36 (4th Cir. 2016)). See also Sheppard, 2021 WL 1227809, at *4, n. 7 (noting
that in the absence of “congressional intervention” in the form of amendments to Title IX, it was “constrained to the
text of Title IX and our binding precedent interpreting the same or similar language” to interpret this category of Title
IX claims to incorporate “but for” causation).
231 See, e.g. id. at *3 (observing that because the court had “no precedential decisions regarding Title IX claims in the
context” of “higher-education disciplinary proceedings,” “our first task is to determine what a party asserting such a
Title IX claim must plausibly allege.”); id. at *4 (“While admittedly not yet addressed in the context of a Title IX
school disciplinary proceeding, the Supreme Court and our Circuit have held that the same or similar language requires
‘but-for’ causation.”); id. (concluding that the “but for” causation standard applies to “Title IX claims alleging
discriminatory school disciplinary proceedings.”).
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In contrast, other federal courts of appeals, including for the First,232 Second,233 and Third234
Circuits, have analyzed Title IX claims challenging allegedly discriminatory discipline under the
“motivating factor” causation standard. These and other courts have drawn upon the analysis of a
Second Circuit decision, Yusuf v. Vassar College.235 In Yusuf, the court of appeals looked to the
“motivating factor” causation standard codified in Title VII and applied that standard to Title IX
claims alleging discriminatory discipline.236 Under Title VII’s “motivating factor” provision, a
plaintiff need not establish that a protected trait was a “but for” cause of the challenged action,
but instead must show that a protected trait was “a motivating factor” for an employer’s action
against an individual, “even though other factors also motivated the practice.”237
Meanwhile, still other courts, often in the context of evaluating dismissals of a plaintiff’s Title IX
complaint, have addressed Title IX claims with similar fact patterns alleging discriminatory
discipline but without expressly identifying which causation standard—“but for,” “motivating
factor,” or other standard—applies.238

232 See, e.g., Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 74 (1st Cir. 2019) (“To make out a claim under
Title IX, Haidak must show that ‘gender bias was a motivating factor’ in the disciplinary process.”) (quoting Trs. of
Boston Coll., 892 F.3d 67, 90 (1st Cir. 2018). Cf. Trs. of Boston Coll., 892 F.3d at 90-92 (stating that although
“[n]either the Supreme Court nor this Circuit have adopted a framework for analyzing claims by students challenging a
university’s disciplinary procedures as discriminatory under Title IX,” it “need not establish one at this moment” given
the parties’ agreement on the “motivating factor” causation standard; analyzing the plaintiff’s Title IX claims under that
standard) (citing Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)).
233 See Yusuf v. Vassar Coll., 35 F.3d 709, 714-15 (2d Cir. 1994) (looking to Title VII to inform its analysis of the
plaintiff’s Title IX claim alleging a discriminatory disciplinary proceeding, and analyzing the Title IX claim under the
“motivating factor” causation standard, in light of Title VII’s provision providing for liability on that basis) (citing 42
U.S.C. § 2000e–2(m)). See generally 42 U.S.C. § 2000e–2(m) (“Except as otherwise provided in this subchapter, an
unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice, even though other factors also motivated the
practice.”). See, e.g., Menaker v. Hofstra Univ., 935 F.3d 20, 31 and n. 34 (2d Cir. 2019) (stating that the circuit has
“long interpreted Title IX ‘by looking to the ... the caselaw interpreting Title VII,’ and we have therefore held that
‘Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline’”)
(citing and quoting Yusuf, 35 F.3d 714-15).
234 See, e.g., Doe v. Univ. of Sciences, 961 F.3d 203, 209 (3d Cir. 2020) (“‘Because Title IX prohibits ... subjecting a
person to discrimination on account of sex, it is understood to bar the imposition of university discipline [when sex] is a
motivating factor in the decision to discipline.’”) (quoting Doe v. Columbia Univ., 831 F.3d 46, 53 (2d Cir. 2016)). See
also id. at 208, 210 (addressing a district court’s dismissal of the plaintiff’s Title IX complaint and concluding that
“[d]rawing all reasonable inferences in the light most favorable to Doe, as we must at this stage, it is plausible that, as
he alleges, sex was a motivating factor in USciences’s investigation and decision to expel him.”).
235 See supra notes 232-33. See also, e.g., Klocke v. Univ. of Texas at Arlington, 938 F.3d 204, 210-213 (5th Cir. 2019)
(discussing the Second Circuit’s Yusuf decision; as the parties agreed on “this framework” as the applicable standard,
analyzing the plaintiff’s Title IX claims relating to discriminatory discipline under Yusuf). Cf. Rowles v. Curators of
Univ. of Missouri, 983 F.3d 345, 359 (8th Cir. 2020) (stating that “Title IX is ‘understood to “bar[ ] the imposition of
university discipline where [sex] is a motivating factor in the decision to discipline.”’”) (citing Doe v. Columbia Univ.,
831 F.3d 46, 53 (2d Cir. 2016)) (quoting Yusuf, 35 F.3d at 715). See also Rowles, 983 F.3d at 360 (concluding that the
plaintiff’s allegations of discriminatory discipline based on sex failed to satisfy either “Title IX’s ‘motivating factor’
standard” or the state law’s “‘contributing factor’” standard).
236 See supra note 233. The court of appeals in Yusuf further delineated two categories of Title IX claims alleging
discrimination in a disciplinary proceeding—claims alleging an “erroneous outcome” and claims alleging “selective
enforcement.” See Yusuf, 35 F.3d at 715.
237 See 42 U.S.C. § 2000e-2(m) (“Except as otherwise provided in this subchapter, an unlawful employment practice is
established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors also motivated the practice.”).
238 For example, in Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), the Seventh Circuit evaluated a challenge
to a district court’s dismissal of the plaintiff’s Title IX claim alleging discriminatory disciplinary proceedings. In so
doing, the court declined to adopt the approach of other circuits differentiating between four categories of Title IX
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In two recent decisions discussed below,239 the Fourth and Eleventh Circuits stated that Title IX
claims generally require a showing of “but for” causation, but without separately analyzing or
examining case law addressing the applicable causation standard for Title IX claims.240
To the extent a lower court considers the issue of causation when determining whether to apply
the reasoning of Bostock to interpret Title IX’s prohibition, the absence of unanimity among
courts on the requisite causation for Title IX claims could raise novel questions of its own.
Appellate Decisions Applying Bostock to Title IX for Coverage
Purposes
Since the Supreme Court’s decision in Bostock, two federal appellate courts have applied the
reasoning of that case to Title IX,241 which prohibits discrimination “on the basis of sex” in
education programs that receive federal financial assistance.242 The Fourth and Eleventh Circuits
relied on Bostock to hold that Title IX prohibits gender identity-based discrimination in two cases
involving transgender students’ ability to access school bathrooms consistent with their gender
identity. As discussed in more detail below, the courts also addressed and rejected arguments that
this interpretation of the statute would necessarily conflict with Title IX regulations that authorize
single-sex bathrooms.243

claims alleging discriminatory discipline. See id. at 667-68 (discussing four categories of Title IX claims identified by
either the Second or Sixth Circuits which concern a discriminatory disciplinary proceeding: “erroneous outcome,”
“selective enforcement,” “deliberate indifference,” and “archaic assumptions”). The Seventh Circuit observed that
these various “categories simply describe ways in which a plaintiff might show that sex was a motivating factor in a
university’s decision to discipline a student.” Id. at 667. The court explained that it “prefer[red] to ask the question
more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John ‘on
the basis of sex’?” Id. at 668. It is unclear, however, whether the court, in rejecting various categorization of Title IX
claims alleging discriminatory discipline, was otherwise adopting “motivating factor” causation for all such Title IX
claims, or whether it intended “discrimination on the basis of sex” to incorporate a different causation standard
altogether. See id. The court analyzed the sufficiency of the plaintiff’s complaint without reference to “but for,”
“motivating factor,” or another causation standard in its analysis. See id. at 667-70. Cf. Schwake v. Arizona Bd. of
Regents, 967 F.3d 940, 946-47 (9th Cir. 2020) (approvingly citing Seventh Circuit’s decisions adopting the “far simpler
standard” for analyzing Title IX claims in the disciplinary context, but also quoting the Second Circuit’s Yusuf decision
for the proposition that “Title IX bars the imposition of university discipline where gender is a motivating factor in the
decision to discipline.”) (citing Doe v. Columbia Coll. Chi., 933 F.3d 849, 854–55 (7th Cir. 2019); Yusuf, 35 F.3d at
715) (internal quotations omitted).
239 Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020), cert denied, -- S.Ct. -- (2021); Adams by and
through Kasper v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020).
240 See Grimm, 972 F.3d at 616-17 (applying the reasoning of the Supreme Court’s Bostock decision to a Title IX claim
brought by a transgender plaintiff challenging a restroom policy that did not permit restroom use in accordance with
gender identity; stating that even if the school board’s “primary motivation in implementing…the policy was to exclude
[the plaintiff] because he is transgender, his sex remains a but-for cause for the Board’s actions” with no additional
discussion or analysis of causation under Title IX); Adams, 968 F.3d at 1305 (in the context of discussing similarities
between Title VII and Title IX, stating that both statutes “employ a ‘but-for causation standard,’” without discussing or
citing Title IX decisions addressing causation; citing and parenthetically describing Comcast Corp. v. Nat’l Ass’n of
African Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020) as “explaining that but-for causation is the ‘default’ rule for
federal antidiscrimination laws”).
241 20 U.S.C. § 1681(a).
242 Some federal district courts have also applied Bostock to Title IX. See Doe v. Univ. of Scranton, No. 3:19-CV-
01486, 2020 WL 5993766, at *5 (M.D. Pa. Oct. 9, 2020) (“Although Title VII involves a separate provision of the
Civil Rights Act of 1964, several courts from sister circuits have extended the Supreme Court’s reasoning in Bostock to
discrimination claims based on sexual orientation brought under Title IX. . . . Thus, in the absence of express Third
Circuit precedent to the contrary, the Court finds Plaintiff's argument to be persuasive.”).
243 See 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room, and shower facilities on the basis of
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Before examining the Fourth and Eleventh Circuit decisions applying Bostock to Title IX, it is
worth noting that several appellate courts had, prior to Bostock, recognized Title IX’s coverage of
claims brought by transgender students challenging school policies that barred them from
restroom use consistent with their gender identity.244 For instance, in 2017, the Seventh Circuit
affirmed a district court’s preliminary injunction ordering a school district to allow a transgender
boy access to the boys’ bathroom.245 In so holding, the panel relied on the Supreme Court’s 1989
plurality opinion in Price Waterhouse v. Hopkins,246 addressing Title VII. In Price Waterhouse, a
plurality of the Court, joined by two Justices concurring in the judgement, found that employees
can bring a Title VII claim alleging that an employer discriminated against them based on sex, for
their failure to conform to sex stereotypes.247 Applying the reasoning of that case to the context of
school bathrooms, the Seventh Circuit concluded that transgender individuals do not conform to
the sex stereotypes of the sex they were assigned at birth, and a “policy that requires an individual
to use a bathroom that does not conform with his or her gender identity punishes that individual
for his or her gender non-conformance, which in turn violates Title IX.”248 Accordingly,
notwithstanding the potential judicial application of Bostock’s reasoning to Title IX, some courts
had already held that transgender students may bring Title IX claims, under a sex stereotyping
theory, to challenge policies prohibiting restroom access consistent with their gender identity.249
Concerning the application of Bostock to Title IX, the Eleventh Circuit in its Adams decision cited
several grounds for looking to Bostock to interpret the scope of Title IX.250 The court noted that
both Title VII and Title IX prohibit discrimination based on sex, reasoned that both statutes
employ the “but for” standard of causation, and observed that the Supreme Court itself has
sometimes looked to Title VII interpretations of sex discrimination in order to apply Title IX’s
mandates.251 The Eleventh Circuit thus concluded that Bostock’s rationale applies to Title IX,

sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of
the other sex.”).
244 In the Fourth Circuit litigation discussed infra, the court in 2016 had initially ruled for the plaintiff in a decision
deferring to an OCR opinion letter that asserted Title IX requires schools to treat transgender students consistent with
their gender identity. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016) (extending
deference under Auer v. Robbins, 519 U.S. 452 (1997) to the Department of Education’s interpretation of Title IX
regulations contained in a 2015 opinion letter). That decision was vacated and remanded to the Fourth Circuit by the
Supreme Court after a new presidential administration issued a guidance document rescinding the 2015 opinion letter,
as well as another Dear Colleague letter from 2016. Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239
(2017).
245 Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017).
246 Id. at 1047 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion)).
247 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion).
248 Whitaker, 858 F.3d at 1049. See also Dodds v. United States Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016)
(affirming a grant of a preliminary injunction against a school district ordering it to allow a transgender girl to use the
girls’ restroom because the student demonstrated a likelihood of success under a sex stereotyping theory).
249 Whitaker, 858 F.3d at 1049; Dodds, 845 F.3d at 222. Some courts have also reviewed challenges to school policies
that permit transgender students to use restrooms and locker rooms consistent with their gender identity. See Doe v.
Boyertown Area Sch. Dist., 897 F.3d 518, 531 (3d Cir. 2018) (concluding that plaintiffs were unlikely to succeed on
merits of Title IX and constitutional claims against allowing transgender students access to bathroom and locker room
facilities consistent with their gender identity), cert. denied, 139 S. Ct. 2636 (2019) and Parents for Privacy v. Barr, 949
F.3d 1210, 1217 (9th Cir. 2020) (“We agree with the district court and hold that there is no Fourteenth Amendment
fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the
opposite biological sex at birth. We also hold that a policy that treats all students equally does not discriminate based
on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual
harassment under Title IX just because a person is transgender.”), cert. denied, 141 S.Ct. 894 (2020).
250 Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286, 1305 (11th Cir. 2020).
251 Id. (citing Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting)); Franklin v.
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meaning that Title IX also prohibits discrimination based on gender identity.252 In applying
Bostock, the panel reasoned that the school district’s policy of prohibiting the transgender male
student from accessing a bathroom consistent with his gender identity “singled him out for
different treatment” than non-transgender students.253 Accordingly, the court concluded that this
different treatment was discrimination in violation of Title IX.
In addition, the panel rejected the school board’s argument that Title IX regulations that currently
authorize single-sex bathrooms “foreclosed” a discrimination claim.254 The court noted that the
plaintiff was not challenging the regulations but seeking access to the boys’ bathroom, and neither
Title IX nor its regulations specify how schools are to determine a transgender student’s sex.255
The panel observed, “the plain language of the regulation sheds no light on whether Mr. Adams's
‘sex’ is female as assigned at his birth or whether his ‘sex’ is male as it reads on his driver's
license and his birth certificate.”256 For the court, because “Title IX and its regulations do not
declare which sex should determine a transgender student’s restroom use . . . the language of [the
regulation] does not insulate the School Board from Mr. Adams's discrimination claim based on
his transgender status.”257
However, the panel’s decision was split. One judge issued a dissenting opinion arguing that the
school board’s policy did not violate Title IX,258 emphasizing several points of disagreement. The
dissent underscored that the Bostock decision expressly disclaimed addressing matters of
bathroom access and did not resolve the question of how “sex” is defined.259 In addition, the
dissent pointed to Title IX’s statutory provision authorizing separate living facilities based on sex
and its implementing regulations, which allow schools to offer sex-specific restrooms.260 Further,
the dissent argued, because Title IX regulations allow for different bathrooms based on sex, the
school board’s policy is allowed.261 The term “sex” is “a classification on the basis of
reproductive function,” not gender identity.262 Pursuant to the “unambiguous” meaning of “sex”

Gwinnett Cty. Pub. Schs., 503 U.S. 60, 75 (1992)). See also supra note 240.

252 Adams, 968 F.3d at 1305.
253 Id. at 1306.
254 See 34 C.F.R. § 106.33.
255 Adams, 968 F.3d at 1308.
256 Id.
257 Id.
258 Id. at 1319 (Pryor, J., dissenting).
259 Id. at 1320 (“Contrary to the majority's and Adams's arguments otherwise, the Supreme Court did not resolve this
question in Bostock. Far from it. Not only did the Court “proceed on the assumption that ‘sex’ ... refer[s] only to
biological distinctions between male and female,” it disclaimed deciding whether Title VII allows for sex-separated
bathrooms. And any guidance Bostock might otherwise provide about whether Title VII allows for sex-separated
bathrooms does not extend to Title IX, which permits schools to act on the basis of sex through sex-separated
bathrooms.”) (citations omitted).
260 Id. See 20 U.S.C. § 1686 (authorizing “separate living facilities for the different sexes”); 34 C.F.R. § 106.33 (“A
recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided
for students of one sex shall be comparable to such facilities provided for students of the other sex.”).
261 Adams, 968 F.3d at 1320 (Pryor, J., dissenting) (“Whether the Board violated Title IX turns on the answer to one
question: what does ‘sex’ mean in Title IX? Regardless of whether separating bathrooms by sex would otherwise
constitute discrimination ‘on the basis of sex,’ 20 U.S.C. § 1681(a), the bathroom policy does not violate Title IX if it
falls within the safe harbor for ‘separate toilet ... facilities on the basis of sex.’ 34 C.F.R § 106.33.”).
262 Id. at 1320.
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in the regulations that authorize sex-separated bathrooms, the dissent argued, the board did not
violate Title IX by prohibiting the plaintiff from using the boys’ bathroom.263
The dissent also argued that the majority opinion was not consistent with the principles that guide
courts’ construction of legislation like Title IX that is enacted under Congress’s Spending Clause
authority.264 Under Supreme Court precedent, when Congress aims to “impose a condition on the
grant of federal moneys, it must do so unambiguously” in a manner that provides regulated
parties with adequate notice of the requirement.265 According to the dissent, the only way the
board can be liable under Title IX is if its policy conflicted with an unambiguous requirement of
the statute. Even if the majority opinion is correct that sex is an ambiguous term, the dissent
contended, the board is subject to suit “only if the meaning of ‘sex’ unambiguously did not turn
on reproductive function.”266
Addressing similar issues, the Fourth Circuit considered a Title IX claim brought by a transgender
male student challenging a school bathroom policy prohibiting him from using the bathroom
consistent with his gender identity.267 The Fourth Circuit panel opinion reached the same
conclusion as the Eleventh Circuit and similarly elicited a dissent.268 The panel majority observed
that while Bostock interpreted Title VII, the decision nonetheless “guides our evaluation of claims
under Title IX.”269 The panel majority noted that in Bostock, the Supreme Court concluded that
because discrimination based on gender identity or sexual orientation necessarily considers the
sex of the individual, such discrimination was thus prohibited conduct under Title VII’s bar
against sex discrimination.270 In light of Bostock, the court reasoned that the school board’s policy
of excluding the plaintiff from the boys’ bathroom also necessarily relied on his sex, making sex a
“but for” cause of the board’s actions.271 The court thus concluded that the boys’ restroom policy
excluding the plaintiff constituted discrimination in violation of Title IX.272
The Fourth Circuit panel rejected the argument that Title IX regulations, which authorize single-
sex bathrooms,273 permit the school board to exclude the plaintiff from the boys’ bathroom.274 In
similar fashion as the Adams decision, the court noted that the plaintiff was not challenging those
regulations, but “the Board’s discriminatory exclusion of him from the sex-separated restroom
matching his gender identity.”275 In addition, according to the court, the regulations do not

263 Id. at 1321.
264 Id. at 1321-22. See supra notes 151-52.
265 Adams, 968 F.3d at 1320 (Pryor, J., dissenting) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981)).
266 Id. at 1322.
267 In 2016, the Fourth Circuit had ruled for the plaintiff in a decision that deferred to an OCR guidance document
asserting that Title IX requires schools to treat transgender students consistent with their gender identity. G.G. ex rel.
Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 715 (4th Cir. 2016). That decision was vacated by the Supreme
Court after the guidance was rescinded following a change in presidential administrations. Gloucester Cty. Sch. Bd. v.
G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017).
268 Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), cert denied, -- S.Ct. -- (2021).
269 Id. at 616.
270 Id.
271 Id.
272 Id. at 616-617. The panel also ruled that the school board’s policy of refusing to update his school records to reflect
his gender identity violated Title IX as well. Id. at 619.
273 34 C.F.R. § 106.33.
274 Grimm, 972 F.3d at 618.
275 Id. at 618.
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preempt the “statutory prohibition against discriminating on the basis of sex.”276 While the court
acknowledged that Title IX regulations permit sex-specific bathrooms,277 it construed Title IX to
prohibit the board from “rely[ing] on its own discriminatory notions of what ‘sex’ means” when
implementing sex-specific bathroom policies.278

As in the Eleventh Circuit case, the panel’s decision was split. Arguing that the school board
policy complied with Title IX,279 the dissenting opinion emphasized that the term “sex” in Title
IX refers to biological characteristics, and the Bostock decision did not hold otherwise.280 The
reason Title IX and its regulations contain certain exceptions, including separate living facilities
based on sex,281 is because of “physical differences between males and females.”282 The school
board’s policy of prohibiting the plaintiff from using the boys bathroom, but allowing him to use
a unisex bathroom or the girls’ restroom, is “explicitly authorized by” the exceptions in Title
IX.283 According to the dissent, forcing a school to allow the plaintiff to use the boys’ bathroom
ignores these biological differences between the sexes. The dissent also rejected the majority’s
conclusion that the school board applied its own discriminatory opinion of what the term “sex”
means. Rather, the dissent claimed, the board simply “relied on the commonly accepted definition
of the word ‘sex’ as referring to the anatomical and physiological differences between males and
females.”284 The Fourth Circuit’s decision was appealed, but the Supreme Court denied certiorari
in the case.285

Apart from the two decisions discussed above, no other federal appellate courts have reached the
question of Bostock’s applicability to Title IX claims. As other courts address the issue, it is
possible that they may adopt different or varying approaches. Some courts, for example, may
examine certain aspects of the analysis in more detail, such as causation under Title IX. As noted
earlier, while Bostock applied a “but for” causation standard under Title VII, federal appellate
courts have differed on which causation standard(s) apply to Title IX claims. In addition, courts
could engage in more detailed comparisons between Title VII and Title IX. As discussed in an
earlier section, the Supreme Court’s decisions interpreting Title IX have analyzed that statute in
light of Title VII to both analogize and distinguish it from the latter. Relatedly, the Court has at
times emphasized unique features of Title IX that differ from Title VII, such as Title IX’s
administrative enforcement schema, its Spending Clause basis, and the statute’s operation in the
specific context of education.286 More generally, while both statutes include a similarly-phrased
mandate against sex-based discrimination, Title IX textually differs from Title VII in notable
ways, including its nine exceptions to the statute’s general bar against sex-based distinctions, and

276 Id.
277 Id.
278 Id.
279 Id. at 628 (Niemeyer, J., dissenting).
280 Id. at 633.
281 See 20 U.S.C. § 1686 (authorizing “separate living facilities for the different sexes”); 34 C.F.R. § 106.33 (“A
recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided
for students of one sex shall be comparable to such facilities provided for students of the other sex.”).
282 Grimm, 972 F.3d at 634.
283 Id.
284 Id. at 634.
285 -- S.Ct. -- (2021) (denying certiorari).
286 See supra section “Supreme Court Precedent Addressing Title IX in Relation to Title VII.”
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its other provisions.287 It is thus possible that some reviewing courts may view these differences
as relevant when determining whether to apply Bostock to Title IX.

It is also possible that courts may adopt analyses similar to the Fourth and Eleventh Circuit
decisions and hold that Title IX’s mandate prohibiting sex discrimination generally encompasses
claims alleging discrimination based on sexual orientation or gender identity. Should courts adopt
that interpretation, however, the resolution of statutory coverage does not necessarily settle other
legal questions, such as how Title IX liability may be established for such claims. Nor would that
application of Bostock resolve how to construe and apply Title IX’s various exceptions permitting
sex-based distinctions in certain circumstances.288 As the Court’s analysis in Bostock did not
reach such questions, it remains to be seen how lower courts approach the interpretation and
resolution of such legal issues.
Legislative Considerations
Federal courts and agencies have begun to address the potential application of Bostock’s
reasoning to other statutes. Congress, however, can directly amend these statutes to clarify their
scope, including to expressly include or exclude sexual orientation or gender identity as
characteristics protected under a given statute. Apart from amending current law, Congress can
also enact new standalone statutes addressing protections and prohibitions concerning sexual
orientation or gender identity, as it has done in the past through legislation focusing on one major
protected characteristic, such as the Equal Pay Act of 1963 (addressing unequal wages based on
sex),289 Title IX of the Education Amendments of 1972 (addressing sex discrimination in
federally funded educational programs and activities),290 and the Americans with Disabilities Act
of 1990 (addressing various protections and requirements relating to disability).291 Congress may
also direct federal agencies to promulgate regulations for the antidiscrimination statutes a
particular agency applies; such regulations could, consistent with relevant statutory requirements,
specifically address issues that have prompted debate or uncertainty.
Clarifying the scope of a statute, however, does not necessarily resolve other novel legal issues
that may arise concerning the analysis or resolution of claims under it. As discussed earlier, for
example, federal courts have adopted different views concerning causation, including with respect
to Title IX, in the absence of express statutory text addressing causation. To resolve ambiguities
and debates regarding the causation standards for relevant statutes, Congress can amend those
statutes to specify the applicable standard(s). While the Court’s reasoning in Bostock coupled
“but for” causation with the text of Section 703(a)(1) to determine the scope of that provision’s
coverage, a legislative amendment could clarify both statutory coverage and causation standards
as independent matters. For example, Congress could amend a statute to expressly prohibit
discrimination based on sexual orientation, and incorporate another causation standard apart from
“but for” to show a violation.
In addition, whether amending an existing statute or enacting a new standalone statute, Congress
may opt to specify the discriminatory acts that constitute a statutory violation and the available

287 Compare 20 U.S.C. § 1681(a)(1)-(9), with 42 U.S.C. § 2000e, et seq.
288 See 20 U.S.C. § 1681(a)(1)-(9).
289 See The Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (1963).
290 See Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235 (1972).
291 See The Americans with Disabilities Act of 1990, P.L. 101-336, 104 Stat. 327 (1990). See also The ADA
Amendments Act of 2008, P.L. 110-325, 122 Stat. 3553 (2008).
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remedies for such violations; and establish particular legal standards for establishing liability as
well as exceptions to liability in certain circumstances.

Author Information

Christine J. Back
Jared P. Cole
Legislative Attorney
Legislative Attorney

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