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On Wednesday, the U.S. Department of Education’s Office for Civil Rights affirmed that LGBTQ youth are protected by Title IX’s prohibitions on discrimination “on the basis of sex.”
Going forward, the agency will interpret the 1972 statute in a way that treats instances of discrimination based on a person’s sexual orientation or gender identity as a form of illegal sex discrimination, and investigate complaints of alleged discrimination in any educational program or activity offered by an institution that accepts federal dollars.
The new interpretation stems from last year’s U.S. Supreme Court decision in Bostock v. Clayton County, in which the high court found that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex. It also builds upon two previous executive orders issued by President Biden seeking to prohibit anti-LGBTQ discrimination by federal agencies and calling on the Department of Education to reassess its nondiscrimination and anti-harassment policies.
“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 statement. “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.”
As the Office for Civil Rights recently reported, LGBTQ students face additional challenges in schools, and disproportionately experience bullying, harassment, and victimization. The recent COVID-19 pandemic and the lack of in-person support or mental health services available while students are forced to learn virtually have also exacerbated the situation for LGBTQ youth, who may still experience bullying, harassment, or isolation from their peers. For example, a recent survey by The Trevor Project found that 78% of transgender or nonbinary youth reported their mental health was “poor” during the pandemic, compared with only 61% of cisgender youth.
“The Department of Education strives to provide schools with the support they need to create learning environments that enable all students to succeed, regardless of their gender identity or sexual orientation. Equity in education means all students have access to schools that allow them to learn and thrive in all aspects of their educational experience,” Suzanne Goldberg, the acting assistant secretary for civil rights, said in a statement. “As part of our mission to protect all students’ civil rights, it is essential that OCR acts to eliminate discrimination that targets LGBTQ+ students.”
The Biden administration’s latest embrace of this interpretation marks a 180-degree turnaround from the Trump administration, which had argued that Title IX’s protections against sex discrimination did not apply to transgender or LGB-identifying students.
The administration’s actions drew praise from LGBTQ-specific groups.
“This is a day that transgender kids and their families have been waiting for,” Rodrigo Heng-Lehtinen, the deputy executive director for the National Center for Transgender Equality, said in a statement. “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.”
“Today, the Biden administration has acted to uphold the fundamental rights of LGBTQ Americans. It’s essential that schools across the country heed this guidance,” Erin Uritus, the CEO of Out & Equal Workplace Advocates said in a statement. “Amidst the devastating legislative season that has left too many transgender young people questioning where they can be safe, this is a meaningful step in the right direction. It’s time to nurture our young people, not shun them.”
The Trevor Project, the world’s largest suicide prevention and crisis intervention organization for LGBTQ youth, also praised the Department of Education’s actions. Citing its own peer-reviewed study published in the Journal of Adolescent Health last year, the organization noted that trans and nonbinary youth who experienced discrimination or harassment had more than double the odds of attempting suicides as their fellow trans and nonbinary youth who did not experience such discrimination. Research has also shown that trans and nonbinary youth who reported having at least one gender-affirming space had 25% reduced odds of attempting suicide in the past year.
“Transgender and nonbinary young people should feel safe going to school and know that they are protected from discrimination. The Trevor Project is grateful to the Department of Education for actively working to ensure that schools are safe and affirming spaces for transgender and nonbinary youth. We know that trans-affirming schools can be life-saving,” Amit Paley, the organization’s CEO and executive director, said in a statement.
“Young people spend most of their time at school and it’s crucial that all students are protected from discrimination and afforded the same rights,” Paley added. “This policy clarification is welcomed, but we must continue to push the Senate to pass the Equality Act and codify nondiscrimination protections for the trans community, and to resist efforts to restrict trans students’ access to gender-affirming bathrooms, school sports, and LGBTQ-inclusive curriculums. We look forward to continuing to work with the Department of Education to protect trans youth.”
“It’s important and affirming to witness the U.S. Department of Education confirm Title IX protections for transgender students,” said David Johns, the executive director of the National Black Justice Coalition. “At present, public school students who identify as — or who are perceived to be — members of the LGBTQ+ community do not have the same legal protections as their non LGBTQ+ peers. For this reason, the Department of Education’s distinction today is a crucial one.
“As we continue working to pass the Equality Act, which will ensure clear and consistent nondiscrimination protections on the basis of sexual identity, gender orientation or expression, we applaud and appreciate the individuals working within our current system to ensure LGBTQ+ /SGL students feel seen, heard, and protected,” Johns added.
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