Executive Summary: June is Pride Month. On June 16, 2021, Miguel Cardona, Secretary of the U.S. Department of Education (the “Department”) under President Joe Biden, issued a Notice of Interpretation stating that Title IX protections extend to gay and transgender students. Title IX, a 1970s-era law, bans sex discrimination in federally funded educational programs, which includes nearly every public school and public and private college and university nationally. The Department’s guidance reverses the former administration’s stance that gay and transgender students were not entitled to Title IX protections and follows the Supreme Court’s 2020 ruling in Bostock v. Clayton County protecting LGBTQ+ workers from discrimination in the workplace.
Background: Title IX prohibits discrimination “because of sex.” “Sex” is not defined, however, and until more recently, there was debate over whether its meaning includes sexual orientation and gender identity. Much of the debate has focused on transgender students’ rights to use the bathroom/locker room corresponding to their gender identity, and on what athletic team such students should compete. The Obama administration took action to extend available civil rights protections to gay and transgender people, however the Trump administration withdrew the Obama Department guidance interpreting Title IX to protect transgender students.
In June 2020, the Supreme Court penned the landmark decision Bostock v. Clayton County, which extended the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964 to LGBTQ+ employees. Title VII uses the same “because of sex” language as Title IX. Several courts, including the Fourth and Eleventh Circuits, held that the Bostock reasoning extended to Title IX given the similarity in language. Notwithstanding these rulings, the Department, under the Trump administration, issued guidance that Bostock did not protect transgender students.
As previously reported by FordHarrison, just hours after his inauguration, on January 20, 2021, President Biden made clear his agenda to extend civil rights protections to LBGTQ+ individuals by signing an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (“the Executive Order”). The Executive Order directed the head of each federal agency, including Secretary Cardona, to implement, revise or rescind its policies to conform with Bostock.
In the June 16, 2021 Interpretation, Secretary Cardona formally reversed the agency’s prior stance that gay and transgender students were not entitled to protection under Title IX, stating: “[t]he 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.” Students who face discrimination because of their sexual orientation or gender identity may now bring claims with the Office of Civil Rights to enforce those rights, and schools who refuse to protect such students will face penalties, the most severe of which is eliminating federal funding.
At the forefront of the debate is athletics, with a growing number of states considering or passing legislation that limits or bans transgender girls and women from participating in interscholastic and intercollegiate athletics with other females. The states include Florida, which passed such a law earlier this month, Alabama, Arkansas, Mississippi, Montana, Tennessee and West Virginia. It remains unclear what, if anything, the Department will do in response to these laws. Although the Department’s new policy does not reference athletics specifically, it does state that the Department will take action against schools where transgender students are denied access to “extracurricular opportunities,” which would include school-sponsored athletics. Secretary Cardona has also publicly expressed his support for transgender female athletes. Private litigation challenging these state laws and urging inclusive policies that permit transgender girls to compete in interscholastic girls’ athletics also remains pending in several jurisdictions.
Bottom Line: The Notice of Interpretation is the most recent example of the hard line the Biden administration has taken in protecting LGBTQ+ individuals. With this interpretation, the Department of Education joins the Departments of Housing and Urban Development and Health and Human Services and the Justice Department, which all have issued similar guidance affirming LGBTQ+ rights. Whether in employment, education, medical care, insurance, housing or law enforcement, the federal government is taking affirmative steps to ensure that LGBTQ+ individuals are protected and have access to the same opportunities as all others. Educational institutions should take this opportunity to review all policies and procedures to ensure they comply with laws and regulations protecting LGBTQ+ students, faculty, and staff. We encourage all educational institutions to consult with their legal counsel to ensure all policies are up to date and discuss how to effectuate change to positively impact student, faculty, and staff populations.
If you have any questions regarding the Notice of Interpretation or any other recent or upcoming changes from the Biden Administration, please contact the authors of this Alert, Johanna Zelman, jzelman@fordharrison.com, partner in FordHarrison’s Hartford Office, Nancy Holt, nholt@fordharrison.com, partner in FordHarrison’s Washington, D.C. office, or Mollie Wildmann, mwildmann@fordharrison.com, associate in FordHarrison’s Memphis office. Of course, you can also contact the FordHarrison attorney with whom you usually work.