The United States Department of Education’s Office of the General Counsel published a memorandum on Friday that states that LGBTQ students are not expressly included in protections under Title IX, the law that prohibits sex discrimination at federally funded institutions.
Questions about how Title IX applies to LGBTQ students surfaced after the U.S. Supreme Court’s landmark ruling in June, Bostock v. Clayton County, which cemented protections for LGBTQ workers under Title VII of the Civil Rights Act of 1964, the law that prohibits workplace discrimination based on race, sex, religion or national origin. The Supreme Court determined that “sex” under Title VII should be interpreted to include LGBTQ people, when they face discrimination based on their sexual orientation or gender identity.
Legal experts and some of the justices themselves suggested the ruling could have consequences for other laws that apply to sex discrimination, including Title IX. The Department of Education’s Office for Civil Rights, or OCR, overseen by former education secretary Betsy DeVos, has since signaled that it would investigate some Title IX complaints that allege discrimination based on homosexuality or transgender identity, but that some exceptions remain for Title IX enforcement. For example, the department said in previous letters that it is not discrimination against transgender students for a school to maintain separate sports teams based on biological sex.
Friday’s memo further maintained that OCR should only consider certain forms of discrimination based on LGBTQ identity as discrimination under Title IX and said that “sex” should only be interpreted to mean “biological sex, male and female.” Title IX allows for exceptions to the law based on biological sex, such as permitting schools to have separate bathrooms for male and female students, and therefore a claim that a transgender student was disallowed from using the bathroom not of their biological sex would not be discrimination, the memo said. The memo outwardly contradicts recent federal appeals court decisions on the matter.
The Human Rights Campaign, an LGBTQ rights advocacy organization, said in a press release that the department, in the Trump administration’s final days, is “misconstruing” the Supreme Court’s Bostock decision. Alphonso David, president of the campaign, said in the release that the memo “is unconscionable and legally flawed.”
“Over the last four years, Secretary DeVos has repeatedly attacked the LGBTQ community -- especially transgender students -- leaving an egregious record of recruiting anti-LGBTQ extremists,” David said. “The Biden-Harris administration and Secretary Designate Miguel Cardona must urgently rescind this discriminatory guidance.”
The department’s interpretation of how Title IX applies to LGBTQ students is not expected to last long. President-elect Joe Biden, a Democrat, will be inaugurated in less than two weeks, and the department will likely be turned over to Cardona, Biden’s nominee for education secretary.