The Department of Education Now Interprets Title IX to Protect LGBTQ+ Students in Response to President Biden’s Executive Order

Harris Beach PLLC

LGBTQ+ students are now protected from discrimination under Title IX of the Education Amendments of 1972, a federal law that protects students from sex-based discrimination in public schools. As of last week, Title IX’s definition of sex discrimination will now include discrimination on the basis of sexual orientation and gender identity. One key change is the reversal of a Trump-administration policy that allowed schools to forbid transgender students from using school facilities that aligned with their gender identity without the threat of a Title IX investigation. This advancement in LGBTQ+ rights came in a series of steps.

In the first days of taking office, President Biden issued an executive order directing federal agencies to update their enforcement of sex discrimination protections in accordance with the landmark Supreme Court case, Bostock v. Clayton County, 140 S. Ct. 1731 (2020). There, the Supreme Court held that sex discrimination under Title VII of the Civil Rights Act encompassed discrimination based on sexual orientation and gender identity. They explained that discriminating an employee on the basis of sexual orientation or gender identity “requires an employer to intentionally treat individual employees differently because of their sex.” Bostock, 140 S. Ct. at 1742. In making its decision, the Court provided multiple examples to illustrate how it is impossible to discriminate on the basis of sexual orientation or gender identity without essentially discriminating on the basis of sex.

Even though Bostock involved employment discrimination, it sparked changes in interpretations of other sex-discrimination provisions, such as Title IX in the context of schools. Federal courts, including those in the Fourth and Eleventh Circuit, have already relied on Bostock to recognize that Title IX prohibits discrimination on the basis of sexual orientation and gender identity.

In alignment with President Biden’s executive order and the Bostock decision, the Department issued its interpretation of Title IX to clarify that Title IX will protect students from discrimination based on sexual orientation and gender identity. As a result, the Department will use Bostock to guide them through Title IX complaints and investigations. The Department’s Office for Civil Rights is responsible for enforcing Title IX, and—while they have recognized that Title IX protects LGBTQ+ students—their interpretations have been inconsistent at times. This advancement will eliminate those inconsistencies by clarifying what rights Title IX covers.

This change to Title IX simply requires school districts to continue the same practices that are mandated by other federal and state anti-discrimination laws. Therefore, school districts must continue to ensure that LGBTQ+ students are given the same accommodations and the same prompt and equitable complaint process as other students under Title IX. Schools must continue to prohibit retaliation against any student who raises a complaint or concern about discrimination based on his, her, or their sexual orientation or gender identity. Title IX also reinforces a school’s obligation to ensure that LGBTQ+ students are given equal access to educational opportunities, including access to single-sex spaces and school activities consistent with their gender identity. Lastly, schools should continue their efforts in informing students about the school’s prohibition against gender-based harassment and bullying.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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