The U.S. Department of Education will enforce prohibitions on anti-LGBTQ+ discrimination in schools that receive federal funding, the department announced Wednesday.
The action is based on the Supreme Court’s ruling a year ago in Bostock v. Clayton County that the federal law banning sex discrimination in employment also covers discrimination based on sexual orientation and gender identity. The ruling did not address education, but the department has interpreted it to apply to Title IX of the Education Amendments of 1972, which bans sex discrimination in education. Some courts have interpreted it in that fashion as well.
“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,” Secretary of Education Miguel Cardona said in a press release. “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.” There is a limited exemption for schools controlled by religious institutions.
While neither the press release nor the accompanying Notice of Interpretation spells it out, the move is likely to make clear that transgender students are entitled to access to the restrooms and changing rooms of their choice and to be referred to by their preferred names and pronouns. Under President Barack Obama, the Education Department took this stance, but under Donald Trump, it revoked those inclusive guidelines. Since President Joe Biden took office, he has been outspoken in support of LGBTQ+ rights.
It’s less clear what the impact will be on states that are passing laws to bar transgender students, especially female ones, from participating on sports under their gender identity. Several states have adopted such laws, mostly in the South, while others are considering them.
“Some schools, especially in the states where there is legislation, will simply ignore what the federal government says,” R. Shep Melnick, a politics professor at Boston College and the author of The Transformation of Title IX: Regulating Gender Equality in Education, told The New York Times. “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.”
However, Cardona advised schools to be proactive in fighting discrimination. They should “not wait for complaints to come to address these issues,” he told the Times. He added, “The reality is each case has to be investigated individually.”