“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,” Education Secretary Miguel Cardona said in a statement.
“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. 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,” he said.
The interpretation comes at a time the nation is debating whether transgender athletes should be allowed to participate in sports on teams that match their gender identities, and Republican-led state legislatures are passing legislation preventing them from doing this.
Several legal scholars said Wednesday that the department’s decision could have a concrete effect on discrimination on transgender students.
“It could very well be a game-changer,” David Hinojosa, director of the Educational Opportunities Project at the nonprofit Lawyers’ Committee for Civil Rights Under Law, said in an email. “States accept federal moneys and agree not to discriminate on the basis of race, sex, etc., under federal laws including Title IX. If they are discriminating against students on the basis of gender, they could be jeopardizing their funding.”
Erwin Chemerinsky, dean of the law school at the University of California at Berkeley and a leading constitutional law expert, agreed that the decision will have an effect, but he said in an email that he expects it to be challenged in court.
Among the restrictions imposed by then-President Donald Trump and his education secretary, Betsy DeVos, was the revocation of Obama-era guidance giving transgender students the right to use bathrooms corresponding with their gender identity.
Last year, the Trump administration threatened to withhold federal funding from school districts in Connecticut, where a state policy allows transgender students to compete in sporting events against athletes who correspond to their gender identity.
Two weeks before Trump left office, his Education Department issued guidance saying that transgender students were not covered by the protections approved by the Supreme Court ruling in Bostock v. Clayton County. (That Supreme Court opinion was surprising because it was written by Neil M. Gorsuch, one of the most conservative justices, who joined with conservative Chief Justice John G. Roberts Jr. in siding with liberal members in a 6-to-3 ruling.)
The Biden administration has taken several steps to rescind Trump-era restrictions on the rights of transgender students, including an announcement in May that it would provide protections against discrimination in health care based on gender identity and sexual identity.
In March, Biden ordered a review of a regulation that went into effect under DeVos about how colleges and universities should handle allegations of sexual assault.
The regulation replaced an Obama-era rule rescinded by DeVos that had been hailed by victims’ rights advocates for providing long-overdue protections for sexual assault survivors. Critics, however, said it did not provide those accused with enough rights and pushed schools to find students guilty.
DeVos’s rule expands the rights of the accused in part by creating a judicial-like process that gives the accused the rights to a live hearing with multiple panel members and to cross-examine accusers, which was not previously allowed. It also narrows the definition of sexual harassment.