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’ ability to play on sports teams that align with their gender identity and restrictions on classroom discussions about “divisive” issues, including sexuality.
In a “notice of interpretation,” the agency cited the U.S. Supreme Court’s 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’s 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’s 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’s stance after shifting positions between the Trump and Biden administrations.
“As numerous courts have recognized, a school’s policy or actions that treat gay, lesbian, or transgender students differently from other students may cause harm,” the Education Department notice said.
Accordingly, the agency’s office for civil rights will investigate “allegations 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.”
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’ obligations about issues like restroom access and pronoun use with the level of detail that would be included in an agency guidance document or “dear colleague” 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’ transgender-inclusive sports policies.
Given that context, Wednesday’s memo was “not surprising,” said Francisco M. Negrón, Jr., the chief legal officer for the National School Boards Association.
In a June letter to the agency, Negrón said school districts need more specific guidance on transgender-student issues like restroom access and sports teams.
“School districts are concerned about the potential liability in states whose legislatures are now requiring the opposite approach in the athletics context,” he said.
School districts are “creatures of state law,” 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’s about the Bostock case’s 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 ‘sex’ in Title IX to mean biological sex, male or female,” it said in a Jan. 8 memorandum. “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.”
That position has since been replaced by the new Biden memos.
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination — and our LGBTQ+ students have the same rights and deserve the same protections,” Education Secretary Miguel Cardona said in a statement Wednesday.
LGBTQ rights groups praised the agency’s announcement Wednesday.
“We 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,” 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 “forcing radical gender identity ideology on everyday Americans by effectively rewriting Title IX.”
“It misconstrues U.S. Supreme Court precedent, and is yet another example of government overreach,” tweeted its attorney, Christiana Holcomb.