New rules from the Department of Education will be released soon. They clarify that Title IX of Education Amendments of 1972 provides protection against discrimination based on sexual orientation or gender identity. This includes discrimination based on whether students are female or male.
The Washington PostThe official regulation was expected to be published in April. This will certainly fuel the ongoing conflict about how transgender girls should be treated if they want to participate in youth sports against cisgender ones.
These regulations seemed almost inevitable after 2020’s Supreme Court ruling that the federal workplace discrimination laws were applicable to LGBT workers. In the 6–3 ruling in Bostock v. Clayton CountyJustice Neil Gorsuch had written the above statement. The majority of the court ruled that it was the right word Sex in Title VII of the Civil Rights Act of 1964—which prohibits workplace discrimination for categories like race, sex, national origin, or religion—also protects people from discrimination on the basis of being gay or trans.
Gorsuch explained in the decision, “An employer that fires someone for being gay or transgender fires them for traits and actions it would have not questioned in members from a different sexuality.” Title VII prohibits the use of sex in any decision.
The Supreme Court was discussing the matter at the time. BostockJustices knew that the decision on what was important. Discrimination against sexIt was likely that this would affect how federal laws were interpreted. He dissents in BostockJustice Samuel Alito warned that there would be another issue over participation in women’s sports.
Although there is much more to anti-discrimination orders than women’s participation in sports, that’s what’s currently causing the culture war and should receive more attention. It may drown out other discussions, including the part of the order that’s probably uncontroversial to most people—that public schools generally shouldn’t be discriminating against LGBT students in other areas or treating them differently from other students. According to the current interpretation of Title IX, schools that receive federal funding can’t discriminate against LGBT or trans students.
Trans sports may also drown out discussions of possible changes to student protections against harassment and sexual misconduct. According to The Washington PostBiden’s administration seeks to loosen rules imposed by Betsy DeVos (ex-Education Secretary) that required schools to acknowledge the presumption if innocence for anyone accused of misconduct.
There is no good news here. A number of public universities have repeatedly violated the rights to due process for students accused of sexual misconduct. They have denied them the right to defend themselves and prevented them from confronting their accusers. The Department of Education, under the former President Barack Obama, has been penalized by courts for some of its bad practices.