Summary: June is pride month. On June 16, 2021, Miguel Cardona, secretary of the US Department of Education (the “Department”) under President Joe Biden, released a Interpretation notice declaring that Title IX protections extend to gay and transgender students. Title IX, a law from the 1970s, prohibits gender discrimination in federally funded education programs, which include almost all public schools and public and private colleges and universities nationwide. The ministry guidelines reverse the previous administration’s position that gay and transgender students were not entitled to Title IX protections and follow the 2020 Supreme Court ruling in Bostock v. Clayton County protect LGBTQ + workers from discrimination in the workplace.
Background: Title IX prohibits discrimination “on the basis of sex”. “Sex” is not defined, however, and until more recently there was debate as to whether its meaning includes sexual orientation and gender identity. Much of the debate focused on the rights of transgender students to use the bathroom / changing rooms that match their gender identity, and which sports team these students should compete on. The Obama administration has taken steps to expand civil rights protections available to gay and transgender people, but the Trump administration has withdrawn Obama Department guidelines interpreting Title IX to protect transgender students.
In June 2020, the Supreme Court issued a landmark decision Bostock v. Clayton County, which extended the gender discrimination prohibitions in Title VII of the Civil Rights Act of 1964 to LGBTQ + employees. Title VII uses the same language “because of sex” as Title IX. Several courts, including the Fourth and Eleventh Circuits, have held that the Bostock reasoning extended to Title IX taking into account the similarity of language. Notwithstanding these decisions, the ministry, under the Trump administration, issued guidelines that Bostock did not protect transgender students.
Like before reported by FordHarrison, just hours after his inauguration on January 20, 2021, President Biden made clear his intention to extend civil rights protection to LBGTQ + people by signing an executive order on preventing and combating discrimination based on gender identity or sexual orientation (“the executive decree”). The executive decree ordered the head of each federal agency, including Secretary Cardona, to implement, revise or rescind their policies to comply with Bostock.
In the interpretation of June 16, 2021, Secretary Cardona officially reversed the agency’s previous position that gay and transgender students were not entitled to protection under Title IX, stating: “[t]he Supreme Court upheld the right of 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. Students discriminated against because of their sexual orientation or gender identity can now file a complaint with the Civil Rights Office to enforce these rights, and schools that refuse to protect these students face penalties, the most severe of which is the elimination of federal funding.
Athletics is at the forefront of the debate, with a growing number of states considering or enacting legislation that restricts or prohibits girls and transgender women from participating in inter-school and inter-varsity sports with other women. States include Florida, which passed such a law earlier this month, Alabama, Arkansas, Mississippi, Montana, Tennessee, and West Virginia. It is still unclear what the department will do, if any, in response to these laws. While the ministry’s new policy does not specifically refer to athletics, it says the ministry will take action against schools where transgender students are denied access to “extracurricular opportunities,” which would include sponsored athletics. by school. Secretary Cardona has also publicly expressed his support for transgender female athletes. Private litigation challenging these state laws and urging inclusive policies that allow transgender girls to compete in interschool girls’ athletics also remain unresolved in several jurisdictions.
Final result: The Interpretation Notice is the most recent example of the hard line taken by the Biden administration to protect LGBTQ + people. With this interpretation, the Department of Education joins the Departments of Housing and Urban Development and of Health and Human Services and the Department of Justice, which have all issued similar guidelines affirming LGBTQ + rights. Whether in employment, education, health care, insurance, housing or law enforcement, the federal government is taking positive steps to ensure that LGBTQ + people are protected and have access to the same opportunities as everyone else. Educational institutions should take this opportunity to review all policies and procedures to ensure that they comply with laws and regulations protecting LGBTQ + students, faculty and staff. We encourage all educational institutions to consult their legal advisors to ensure that all policies are up to date and to discuss how to effect changes to have a positive impact on the populations of students, faculty and staff. staff.