Schools violate the prohibitions against sex discrimination in Title IX when they discriminate against students based on their sexual orientation or gender identity, the U.S. Department of Education said in a legal memo Wednesday.
That position could set the stage for explosive legal battles as states around the country debate and enact new laws that restrict transgender students鈥� ability to play on sports teams that align with their gender identity and restrictions on classroom discussions about 鈥渄ivisive鈥� issues, including sexuality.
In a 鈥渘otice of interpretation,鈥� the agency cited the U.S. Supreme Court鈥檚 2020 decision in Bostock v. Clayton County, Ga., which held that a prohibition of sex discrimination in Title VII, the federal employment law, prohibits unequal treatment on the basis of sexual orientation or gender identity. That interpretation extends to Title IX鈥檚 protections, the Education Department argued in its latest notice, citing a similar memo issued by the Justice Department March 26.
The legal interpretation has been the position of President Joe Biden鈥檚 administration since he signed an inauguration day executive order on the rights of LGBTQ Americans. But the Education Department memo aims to provide additional clarity on the agency鈥檚 stance after shifting positions between the Trump and Biden administrations.
鈥淎s numerous courts have recognized, a school鈥檚 policy or actions that treat gay, lesbian, or transgender students differently from other students may cause harm,鈥� the Education Department notice said.
Accordingly, the agency鈥檚 office for civil rights will investigate 鈥渁llegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.鈥�
The memo does not specifically mention school sports, which have been the subject of some of the most intense debates in state legislatures. And it does not detail schools鈥� obligations about issues like restroom access and pronoun use with the level of detail that would be included in an agency guidance document or 鈥渄ear colleague鈥� letter.
In one of her first official acts, former U.S. Secretary of Education Betsy DeVos withdrew Obama-era guidance on the rights of transgender students. The Biden administration is expected to put some form of that guidance back into place. In hearings about Title IX last week, it sought public input on regulations for investigating reports of sexual assault and harassment in schools and for addressing discrimination on the basis of sexual orientation and gender identity.
The Biden administration also previously withdrew court filings made by the Trump administration that argued against states鈥� transgender-inclusive sports policies.
Given that context, Wednesday鈥檚 memo was 鈥渘ot surprising,鈥� said Francisco M. Negr贸n, Jr., the chief legal officer for the National School Boards Association.
In a June letter to the agency, Negr贸n said school districts need more specific guidance on transgender-student issues like restroom access and sports teams.
鈥淪chool districts are concerned about the potential liability in states whose legislatures are now requiring the opposite approach in the athletics context,鈥� he said.
School districts are 鈥渃reatures of state law,鈥� he told Education Week Wednesday, but they may not want to risk a loss of federal funding if they are found in violation of Title IX.
The Trump administration had previously reached the opposite conclusion from Biden鈥檚 about the Bostock case鈥檚 application to Title IX.
"[B]ased on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term 鈥榮ex鈥� in Title IX to mean biological sex, male or female,鈥� it said in a . 鈥淐ongress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so.鈥�
That position has since been replaced by the new Biden memos.
鈥淭he Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination 鈥� and our LGBTQ+ students have the same rights and deserve the same protections,鈥� Education Secretary Miguel Cardona said in a statement Wednesday.
LGBTQ rights groups praised the agency鈥檚 announcement Wednesday.
鈥淲e trust that this fully inclusive interpretation of Title IX will guarantee every student a truly equitable experience in school and school sports, no matter their gender identity,鈥� said Noreen Farrell, the executive director of Equal Rights Advocates.
But an attorney for Alliance Defending Freedom, a conservative legal group that has argued against transgender-inclusive policies, slammed the Education Department memo as 鈥渇orcing radical gender identity ideology on everyday Americans by effectively rewriting Title IX.鈥�
鈥淚t misconstrues U.S. Supreme Court precedent, and is yet another example of government overreach,鈥� its attorney, Christiana Holcomb.
