Transgender students protected at school by Title IX, Department of Education says
The rights of transgender and gay students are protected at school by Title IX, President Joe Biden's administration said Wednesday, reversing GOP-authored guidance that said those students were not protected by any federal laws.
The announcement from the Department of Education comes not only during Pride Month, but also during a national debate over whether transgender athletes should be allowed to compete in sports that match their gender identities. Such debates have prompted a wave of anti-trans legislation from GOP-led state legislatures.
“Today, the Department makes clear that all students – including LGBTQ+ students –deserve the opportunity to learn and thrive in schools that are free from discrimination,” Education Secretary Miguel Cardona said in a statement.
“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."
The interpretation of the law reverses guidance issued under former President Donald Trump. That administration, in turn, had rescinded guidelines that said Title IX applied to discrimination based on gender identity.
"This is a day that transgender kids and their families have been waiting for," said Rodrigo Heng-Lehtinen, deputy executive director for the National Center for Transgender Equality. The Biden administration, Heng-Lehtinen said, "will defend their right to fully participate in school."
Wednesday's news comes one year after the Supreme Court ruled gay and transgender workers are protected by the Civil Rights Act, legislation that bans discrimination in the workplace. The Education Department's interpretation says gay and transgender students will have those same protections in schools.
The new guidance is particularly important for students in places where state-level protections for transgender youth don’t exist, said Christy Mallory, legal director at the University of California-Los Angeles’ Williams Institute, which conducts research on sexual orientation and gender identity law and policy.
According to research by GLSEN, an LGBTQ youth advocacy organization, more than half of all states lack comprehensive guidance concerning transgender, nonbinary and gender-nonconforming students.
Title IX guidance changed under Obama, Trump, Biden
Former President Barack Obama's administration made clear to schools in 2016 that Title IX, a 1972 law prohibiting sex-based discrimination in schools, protected transgender students.
In 2017, the Trump administration rescinded the Obama-era guidance that spelled out schools' legal responsibilities. The Trump administration also threatened to withhold federal funding from schools that allowed transgender students to participate in school sports.
Trump's secretary of Education, Betsy DeVos, also suggested the Office of Civil Rights, a branch of the Department of Education, would not investigate discrimination complaints from transgender students.
None of those actions changed the law, but they created confusion.
Wednesday's notice clarifies that confusion by reminding public schools of their obligation under Title IX to provide safe and non-discriminatory environments to LGBTQ students, said Paul D. Castillo, a lawyer and students' rights strategist at Lambda Legal, a civil rights organization that defends LGBTQ people. And it signals the Office of Civil Rights will review their complaints with the same vigor as other complaints, he added.
A slew of bills targeting transgender people’s rights have been introduced in states across the country this year. Among the legislation are at least 69 bills that would prohibit transgender youth from participating in sports on teams that are consistent with their gender identity, according to the Human Rights Campaign, which declared 2021 “the worst year for anti-LGBTQ legislation in recent history.”
While the new rules don’t explicitly mention transgender athletes, Mallory suspects specific guidance is coming. Either way, complaints regarding LGBTQ discrimination in athletics could be investigated under the updated Title IX guidance, as the law covers sports.
Still, lawsuits over the interpretation of Title IX could be coming.
Republican lawmakers bringing bills that would restrict transgender athletes say they want to protect opportunities for girls, including access to athletic scholarships. One of the anti-transgender sports bills to become law, in Idaho, was supported by Alliance Defending Freedom, an Arizona-based legal group founded by Christian conservatives.
The new guidance "forces radical gender identity on everyday Americans," said Christiana Holcomb, legal counsel at the alliance. "It misconstrues U.S. Supreme Court precedent, and is yet another example of government overreach."