The Department of Education will interpret Title IX, a federal law that protects students from sex-based discrimination in federally funded schools, to protect LGBTQ students from discrimination, according to a federal notice published Wednesday.
The update is a reversal of a Trump administration policy rolling back Obama-era guidance that directed schools to allow transgender students to use the bathrooms, changing rooms and other school facilities that aligned with their gender identity.
The department said in a press release that its interpretation came from the landmark U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, which held that LGBTQ people are protected from employment discrimination under Title VII of the Civil Rights Act of 1964.
President Joe Biden issued an executive order in the first days of his presidency directing all federal agencies to implement the Bostock ruling and update their enforcement of sex discrimination protections accordingly.
In the 6-3 Bostock majority opinion, Justice Neil Gorsuch, an appointee of former President Donald Trump, wrote that discrimination based on sexual orientation or gender identity is discrimination based on sex.
"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," U.S. Secretary of Education Miguel Cardona said in a statement. "I'm proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination. 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."
The directive will allow the Department of Education to pursue Title IX complaints from LGBTQ students — reversing the Trump administration's 2018 announcement that it wouldn't investigate civil rights complaints from trans students prohibited from using school facilities that aligned with their gender identity.
The policy could also affect states that have passed laws barring trans student athletes from competing on school sports teams that align with their gender. Nine states have passed such measures — eight of which passed in 2021.
After the department announced the policy, Cardona tweeted video of an interview he did with ESPN about trans athlete bans.
"Transgender athletes are students, first and foremost, and they deserve every right that every other student gets," including access to extracurricular activities such as sports, he said.
Sponsors of trans athlete bans have said trans girls have a competitive advantage over cisgender girls, but they've been unable to cite clear scientific evidence to show that's true or examples where trans girls competing in girls sports have caused problems.
Cardona said he recognizes there's "a lot of concern" around the issue of fairness, "but what's not tolerable is saying that some students cannot participate because of their gender."
He added that he does believe in states having control over their own laws, "but we do have a responsibility to protect the civil rights of students, and if we feel the civil rights are being violated, we will act."
A peer-reviewed study by The Trevor Project, an LGBTQ youth suicide prevention organization, found that trans and nonbinary youth who reported experiencing discrimination based on their gender identity had more than double the odds of attempting suicide in the past year compared to those that didn't. It also found that the odds of trans youth attempting suicide declined by 25 percent when they reported having at least one gender-affirming space.
“Young people spend most of their time at school and it’s crucial that all students are protected from discrimination and afforded the same rights," Amit Paley, CEO and executive director of The Trevor Project said in a statement. "This policy clarification is welcomed, but we must continue to push the Senate to pass the Equality Act and codify nondiscrimination protections for the trans community, and to resist efforts to restrict trans students’ access to gender-affirming bathrooms, school sports, and LGBTQ-inclusive curriculums.”
