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Law & Courts

Justice Department Memo Could Stoke State-Federal Fights Over Transgender Students’ Rights

By Evie Blad — April 05, 2021 3 min read
Stephanie Marty demonstrates against a proposed ban on transgender girls and women from female sports leagues outside the South Dakota governor's mansion in Pierre, S.D. on March 11, 2021.
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Title IX protects students from discrimination on the basis of sexual orientation and gender identity, President Joe Biden’s Justice Department said in a recent memo to federal agencies.

That long-expected directive—a reversal of the Trump administration’s position—comes as states around the country consider bills that would restrict transgender students’ ability to do things like using pronouns and playing on teams that align with their gender identity.

It sets the stage for possible state-federal legal battles over interpretations of Title IX, which prohibits discrimination on the basis of sex in K-12 schools, colleges, and universities.

The memo, sent to civil rights directors at federal agencies March 26, cites a June decision by the U.S. Supreme Court in Bostock v. Clayton County, which found that that an employer who fires a worker merely for being gay or transgender violates Title VII, a federal law that prohibits discrimination on the basis of sex in employment situations.

In an inauguration day executive order, Biden ordered agency heads to examine whether the same interpretation should be applied to other federal laws that prohibit sex discrimination, including Title IX.

“After considering the text of Title IX, Supreme Court case law, and developing jurisprudence in this area, the [Justice Department’s civil rights decision] has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation,” says the memo.

The document was written by Principal Deputy Assistant Attorney General Pamela S. Karlan, who previously represented plaintiffs in the Bostock case. It cites two appellate court decisions since that ruling that held schools violated Title IX when they barred transgender students from restrooms that aligned with their gender identity. In one of those cases, the school district has since appealed to the Supreme Court.

“Whether allegations of sex discrimination, including allegations of sexual orientation or gender identity discrimination, constitute a violation of Title IX in any given case will necessarily turn on the specific facts, and therefore this statement does not prescribe any particular outcome with regard to enforcement,” the memo says.

The analysis should be a starting point for “robust enforcement of Title IX,” Karlan wrote.

The Title IX rulings mentioned in the memo, which both cited Bostock, did not center on athletics, which have been a key issue for state legislatures around the country this year.

But the Biden administration has already taken some other steps in support of transgender student athletes. It withdrew court filings previously made by the Trump administration that argued against states’ transgender-inclusive sports policies.

Former President Donald Trump’s administration previously held that the precedent in Bostock did not apply to LGBTQ students.

"[B]ased on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term ‘sex’ in Title IX to mean biological sex, male or female,” it said in a Jan. 8 memorandum, which was replaced by the new Biden administration directive. “Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so.”

The Biden administration’s new memo is “not surprising” in light of the president’s executive order and “existing precedent for interpreting Title IX using Title VII,” said Francisco M. Negrón, Jr., the chief legal officer for the National School Boards Association.

But news of the interpretation, which circulated online Monday, still pleased advocates for transgender students. They included Chase Strangio, an attorney for the ACLU, who also celebrated Arkansas Gov. Asa Hutchinson’s Monday decision to veto a bill that would have banned gender-confirming medical treatment for transgender youth.

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