Story at a glance
- In July, the Supreme Court decided that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity.
- A recent memo from the Department of Education claims that educational programs and activities can still be restricted based on "biological sex."
- LGBTQ+ advocates are speaking out against the policy as the department prepares for a change in leadership.
The same day Education Secretary Betsy DeVos resigned from the position, the department sent out a memo that said the "prohibition on sex discrimination" in Title VII of the Civil Rights Act of 1964 does not apply to Title IX.
“You have asked the Office of the General Counsel a series of questions regarding the effect of the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), with respect to Title IX,” said Kimberly Richey, acting assistant secretary of the office for civil rights, in the memo. In response to the question of whether the Supreme Court decision construes the same protections under Title IX, which is under the jurisdiction of the Department of Education, the answer was "No."
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In July, LGBTQ+ advocates celebrated the decision establishing protections for employees against discrimination based on sexual orientation or gender identity. But those protections don’t extend to students, claims the Trump administration, which said the Court decided the case "narrowly."
Justice Neal Gorsuch, who delivered the court’s opinion, noted that the decision could affect Title IX, saying in one example, "a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person's claim to such bathroom or locker room access might not succeed." In regards to women’s sports and housing, other issues that come up under both Title VII and Title IX, Gorsuch said simply that the decision "may lead to Title IX cases."
The outgoing administration is doubling down on its interpretation of the term "sex" as "biological sex, male or female,” arguing that the court's use of the term "identified as male at birth" can be interpreted to mean that "a male employee who identifies as female nonetheless remains a biological male."
LGBTQ+ advocates are pushing back, calling on the department to rescind its guidance and criticizing the move in the final days of the Trump administration.
“The guidance was issued by the Office of General Counsel just days after the country sought to recover from the white supremacist insurrection at our nation’s Capitol and while Secretary of Education Betsy Devos slinked away from her post after resigning to avoid her responsibility to hold her boss accountable. This current crisis compounds the challenges of the COVID-19 pandemic that includes long standing inaction and inadequate emergency response from the Trump Administration," said GLSEN Deputy Executive Director Melanie Willingham-Jaggers in a statement.
President-elect Joe Biden is set to nominate Connecticut education commissioner Miguel Cardona to take over the department after taking office on Jan. 20, and advocates are already calling for action.
“The Department must end these attacks against LGBTQ+ students, particularly those who are transgender, nonbinary, Black, Indigenous, people of color, and people with disabilities that continue to harm students and build walls to educational opportunities. Our students need to be supported and affirmed during this time of mass disruption and trauma rather than further victimized by these attacks,” said Willingham-Jaggers.
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