NAICU Washington Update

Education Department: Title IX Prohibits Sexual Orientation and Gender Identity Discrimination

June 17, 2021

The Department of Education has issued guidance concluding that Title IX prohibits sexual orientation and gender identity discrimination. 

In the new guidance, the Department examines the Supreme Court’s decision in Bostock v. Clayton, which held that a federal employment discrimination law that prohibits sex discrimination extends to bar discrimination on the basis of sexual orientation and gender identity. Based on the Court’s reasoning in that case, the Department concluded that Title IX’s prohibition against sex discrimination likewise prohibits discrimination against LGBT students. 

Although the Department states that it will enforce Title IX pursuant to the new guidance, the agency noted that its interpretation of Title IX “does not itself determine the outcome in any particular case or set of facts.”  The guidance also does not address how Title IX will be applied in specific situations involving discrimination against lesbian, gay, bisexual, or transgender (LGBT) students. For example, the guidance does not cover how the agency’s interpretation should be applied to transgender students’ participation in athletics or access to shared facilities such as restrooms, though more Biden Administration guidance on these issues may eventually be forthcoming. 

The new guidance from the Department comes in response to two of President Biden’s Executive Orders. One such order instructed federal agencies to ensure that federal laws that prohibit sex discrimination are interpreted to bar discrimination on the basis of sexual orientation and gender identity. The second order announced a comprehensive review of the Department’s Title IX policies, including policies related to sexual orientation and gender identity discrimination.  

Although the new guidance does not explicitly address gender identity discrimination in athletics, the Biden Administration took separate action this week to defend the rights of transgender girls to play on sports teams that match their gender identity. The Department of Justice (DOJ) filed a statement of interest in support of a transgender athlete who is challenging a West Virginia state law that bars students who are biologically male from participating on female sports teams. The court filing alleges that the state law in question violates transgender students’ constitutional rights to equal protection. Previously, DOJ released guidance that interprets Title IX to prohibit discrimination on the basis of sexual orientation and gender identity.

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