NAICU Washington Update

Education Department Provides Additional Guidance on LGBTQ+ Harassment

June 25, 2021

The Department of Education issued additional guidance this week to mark the 49th anniversary of Title IX and to provide supplemental information about harassment involving lesbian, gay, bisexual, transgender, and queer (LGBTQ+) students. The new guidance follows last week’s release of a notice interpreting Title IX to prohibit discrimination on the basis of sexual orientation and gender identity. 

This week’s guidance includes a new fact sheet that provides examples of incidents that may prompt the Biden Administration to investigate. According to the fact sheet, one situation that could give rise to enforcement action involves a transgender female student who is denied the ability to use the girls’ restroom or to try out for the girls’ cheerleading team. The use of this example is the strongest indication thus far that the Department will apply Title IX in support of transgender students who wish to participate on athletic teams or access shared facilities that match their gender identity.

The most recent guidance also identifies additional resources for LGBTQ students who suspect they may have been victims of unlawful discrimination. 

Collectively the recent guidance documents released by the Department come 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.  

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