In a reversal from the Trump Administration, the Department of Education under President Biden on Wednesday issued an updated interpretation of Title IX, the law that protects students from sex-based discrimination in federally funded schools, determining that the law applies to LGBTQ students.
The department cited the Supreme Court decision Bostock v. Clayton, a 2020 case that upheld the Civil Rights Act of 1964, which protects employees against discrimination based on sexual orientation and gender identity. The case has been cited recently by a number of federal agencies, such as the Department of Housing and Urban Development, the Justice Department and the Department of Health and Human Services, to protect the rights of transgender Americans.
“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 news release Wednesday. “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."
Transgender students are at high risk of experiencing discrimination and feeling unsafe in schools. A 2019 report released by the Movement Advancement Project, an LGBTQ advocacy group, revealed that 75 percent of transgender students felt unsafe at school because of their gender expression, and 70 percent of transgender students said that they’d avoided bathrooms because they felt unsafe or uncomfortable.
The Education Department’s reinterpretation of Title IX is a response to the Trump administration’s withdrawal of various protections for LGBTQ students under the law.
In 2016, the Obama administration made it clear that transgender students were protected by Title IX, but Obama's successor, Trump, rolled back the protections in a series of perceived attacks against transgender students.
In 2017, the Trump administration withdrew protections for transgender students that allowed them to use bathrooms and facilities in public schools that correspond with their gender identity. Trump’s Education Department also threatened to withhold millions of dollars from Connecticut schools for their refusal to withdraw from an athletic conference that allowed transgender students to compete. Before leaving office in January, former Secretary of Education Betsy DeVos issued a final blow to transgender students, further clarifying that they are not protected under Title IX.
The reversal of the Trump-era interpretation of Title IX is, however, only the first step in protecting transgender American students. LGBTQ advocates say 2021 is a record-breaking year for state anti-transgender legislation, with 33 states having introduced more than 100 bills to cut back on transgender rights.
Focusing on transgender youth, 31 states have introduced bills that would ban transgender athletes from participating in school sports consistent with their gender identities. The “Fairness in Women’s Sports Act” would prevent transgender girls and women from participating in school, intramural or club sports with their same-gender peers. It has already been signed into law in Florida by Gov. Ron DeSantis.
Still, the protection of transgender students under Title IX can serve as clarification to states on where the federal administration stands and can lead to restricted federal funding for schools that violate the law.
“This is a day that transgender kids and their families have been waiting for,” Rodrigo Heng-Lehtinen, deputy executive director for the National Center for Transgender Equality, said in a press release. “Across the country, politicians have targeted transgender youth for discrimination at school. Now those same kids know that the Biden administration and the US Department of Education see them for who they really are and will defend their right to fully participate in school. This is a huge day for trans youth and the people who love them.”
The Department of Education’s decision follows a series of reversals of Trump administration cutbacks on transgender rights. On his first day in office, Biden signed an executive order reversing the 2018 transgender military ban and, in May, the Department of Health and Human Services restored transgender health protections.
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