In an expected move, the U.S. Education Department announced on Wednesday that LGBTQ students are protected by Title IX — making clear how the federal government plans to enforce the gender-equity law during the Biden administration.
President Biden had set the stage for the announcement on his first day in office, in January, when he signed an executive order asserting that Title IX’s protections based on sex cover sexual orientation and gender identity.
As the basis for its interpretation, the department cites a 2020 Supreme Court ruling that determined that Title VII, the civil-rights law covering employment, protects LGBTQ workers from discrimination in the workplace.
The department’s decision could have the greatest impact in elementary and secondary education, where Republican state legislatures have passed or considered bills in recent months that would ban transgender students from participating in school athletics. (It’s not clear how the federal interpretation of Title IX will affect those state laws, The New York Times reported on Wednesday.) Most secular colleges already prohibit discrimination based on sexual orientation and gender identity.
Still, the decision is significant for LGBTQ college students, who can now turn to the Education Department’s Office for Civil Rights, which enforces Title IX, if they face discrimination or harassment.
The civil-rights office can take away colleges’ federal funding for violating Title IX, though that nuclear option has never been used. Most often, the department and institutions sign resolution agreements, which can include promises to change policies and undergo years-long monitoring periods with regular compliance reviews.
Federal guidance documents interpreting laws do not have the force of law. But transgender rights could be codified if the Education Department revises the 2020 Title IX regulations crafted by the Trump administration. During a virtual public hearing on Title IX this month, commenters spoke for and against adding Title IX protections for transgender students to the federal rules.
