Title IX Protections Extend to Transgender Students, Education Dept. Says

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The department said that discrimination against transgender students was prohibited under the law, a reversal of its Trump-era position.

Miguel A. Cardona, the education secretary, said the department under President Biden would “double down” on supporting the rights of transgender students.
Credit...Michael M. Santiago/Getty Images

Katie Rogers

June 16, 2021

WASHINGTON — The Education Department said on Wednesday that transgender students were protected under Title IX, a law that prohibits sex-based discrimination in federally funded schools, reversing a Trump-era policy that effectively had said the opposite.

“We just want to double down on our expectations,” Miguel A. Cardona, the education secretary, said in an interview. “Students cannot be discriminated against because of their sexual orientation or their gender identity.”

The decision was rooted in a Supreme Court ruling last year that determined that protections in the Civil Rights Act against discrimination in the workplace extended to gay and transgender people, and similar interpretations of the ruling have appeared in agencies throughout President Biden’s government. His administration has conducted a sweeping effort to rescind, revise or revoke a number of Trump-era policies that rolled back transgender rights.

The Department of Housing and Urban Development, the Justice Department and the Department of Health and Human Services have all issued guidance affirming the rights of transgender Americans, using the court’s ruling as a template.

“I think that the Trump administration really tried to muddy the waters on its way out the door,” Josh Block, a senior staff attorney at the American Civil Liberties Union’s L.G.B.T. & H.I.V. Project, said in an interview. Mr. Block called the Education Department’s newest announcement a “very simple and very clear” interpretation of the rule, but said he was still waiting for the agency “to put more flesh on the bones about what discrimination really means.”

The department will not change the process of reporting or investigating individual cases of discrimination through its Office for Civil Rights, Mr. Cardona said, adding, “There’s a process for investigating specific cases, and we want to respect that process.” It is also unclear how far the Biden administration will go to address legislative efforts to restrict rights based on gender identity. That includes dozens of bills introduced by Republicans across the country to bar transgender girls from playing sports.

According to a tally by CNN, at least 31 states have introduced bills that would ban transgender students from playing sports that correspond with their gender identity. Laws have been enacted in Arkansas, Mississippi, Montana, West Virginia and Tennessee.

“The reality is each case has to be investigated individually,” Mr. Cardona said. Schools, he added, should “not wait for complaints to come to address these issues.”

He likened the announcement to setting down a marker for schools nationwide, alerting them that the Biden Education Department would not tolerate discrimination in schools receiving federal funds.

“This is really clarity around how we interpret it,” Mr. Cardona said. “We need to make sure we are supporting all students in our schools.”

Experts are skeptical that the new interpretation of Title IX will compel local officials to make changes, including in states that bar transgender athletes, if they are in ultimately in compliance with state laws.

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Protesting anti-L.G.B.T.Q. legislation at the State Capitol in Montana in March. Experts are skeptical that the Biden administration’s new interpretation of Title IX will compel local officials to make changes.
Credit...Thom Bridge/Independent Record, via Associated Press

“Some schools, especially in the states where there is legislation, will simply ignore what the federal government says,” said R. Shep Melnick, a politics professor at Boston College and the author of “The Transformation of Title IX: Regulating Gender Equality in Education.” “And then it becomes a question of whether the federal government wants to take enforcement action, which I think they may be somewhat reluctant to do.”

But Mr. Biden — whose wife, Jill Biden, is a teacher — has shown particular willingness to engage in Title IX changes. As vice president, Mr. Biden was integral to President Barack Obama’s efforts to overhaul Title IX, in part by issuing guidance that led to aggressive investigations of schools that had mishandled sexual assault complaints and threatened them with funding cuts. Rules proposed in 2018 by Betsy DeVos, the education secretary under President Donald J. Trump, wiped that out and cemented procedures that bolstered the due process rights of accused students.

Two months into his presidency, Mr. Biden directed Mr. Cardona to conduct an expansive review of all policies related to the law. That decision came just after the administration in February retracted its support for a Trump-era lawsuit seeking to block transgender students from participating in girls’ high school sports. The Office for Civil Rights also reversed the Trump administration’s decision to withhold federal funding from schools in Connecticut that allowed transgender girls and women to compete on sports teams with biological girls and women.

Throughout Mr. Trump’s presidency, his administration revoked Obama-era guidance on the rights of transgender students but did not install its own regulations. In 2017, the administration rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity. That directive, administration officials said, was made “without due regard for the primary role of the states and local school districts in establishing educational policy.”

The Trump administration had also threatened last year to withhold federal aid from schools that allowed transgender athletes to participate in scholastic sports.

The Education Department has not reinstated the Obama-era guidance and is still conducting its review of policies related to Title IX. In April, officials invited students, educators and other stakeholders to share insights on “the issue of sexual harassment in school environments, including sexual violence, and discrimination based on sexual orientation and gender identity.” Mr. Cardona said the department had heard from thousands of teachers, students, parents and administrators who wanted to weigh in on the existing rules.

“We are in the process now of synthesizing that information as we go to the next steps of actually developing our rules,” Mr. Cardona said on Tuesday. He did not provide a timeline for when the work would be finished, but he added: “We are going to move as quickly as possible on it. We know many folks are waiting.”

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