Education Department Extends Title IX Protections to Transgender Students, in Reversal of Trump-Era Guidance

Secretary of Education Miguel Cardona takes part in a briefing at the White House in Washington, D.C., March 17, 2021. (Leah Millis/Reuters)

The Education Department on Wednesday announced that it would expand the definition of the federal civil-rights statute banning sex discrimination in federally funded education programs to include gender identity amid a national debate over whether biological males should be allowed to compete in girls’ sports.

“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 statement adds.

The department said that discrimination against gay and transgender students is prohibited under the 1972 law that forbids sex-based discrimination in federally-funded schools. 

The move is the latest in a years-long argument over the definition of “sex” that has now spanned three administrations. The Obama administration initially expanded the definition, writing in a Dear Colleague letter that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

The Obama administration then used the new definition to issue mandates to schools across the country requiring that schools use a transgender student’s chosen pronouns and that they open bathrooms, locker rooms, overnight accommodations, and some sports teams to students based on their chosen gender identity.

However, the Trump administration’s Education Department and Department of Justice later rescinded that guidance, saying that if “sex” is redefined it should be done by Congress or the Supreme Court.

The Supreme Court ruled last year that the meaning of discrimination “on the basis of sex” in the workplace encompassed “gender identity,” though it did not expand the definition of sex to include gender identity. It said that to discriminate against someone for their “gender identity” necessarily entails discrimination on the basis of sex.

However, the Biden administration has now interpreted the ruling to apply to discrimination against gender identity in schools.

“We just want to double down on our expectations,” Cardona told the New York Times. “Students cannot be discriminated against because of their sexual orientation or their gender identity.”

Yet the announcement does not change the process of reporting or investigating individual cases of discrimination, according to the report.

The ruling could expose schools that seek to preserve sex-segregated spaces to litigation and could lead to challenges against Republican-led efforts to preserve female only sports, though Cardona was vague about how aggressively the Department of Justice would be in pursuing such cases.

“The reality is each case has to be investigated individually,” Cardona said, adding that schools should “not wait for complaints to come to address these issues.”

Cardona said the announcement aims to give schools notice that the Biden administration will not tolerate discrimination in schools receiving federal funds.

“This is really clarity around how we interpret it,” Cardona said. “We need to make sure we are supporting all students in our schools.”

“We are in the process now of synthesizing that information as we go to the next steps of actually developing our rules,” Cardona said.

Though he did not offer a timeline for when the work would be finished, he said the department plans to “move as quickly as possible on it” as “we know many folks are waiting.”

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