Title IX of the federal Education Amendments of 1972 was passed to prohibit sex-based discrimination in schools that receive federal funding. Recently, it has been open to question whether Title IX should be read to protect gay and transgender students from discrimination, as well.
The question had long been unclear, but last year, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act, which covers employment, extends to the LBGTX+ community. The high court ruled that the language of Title VII, which prohibits discrimination “because of sex” must be read to prohibit any type of discrimination related to sex or gender.
Title VII and Title IX were passed together and share the same language. Therefore, the U.S. Department of Education recently stated that Title IX, too, applies to gay and transgender students. Other agencies that enforce federal civil rights laws have also affirmed that those laws apply to gay and transgender people.
That does not mean that protections for gay and transgender people are unquestionably in effect. For example, bills have been introduced in 31 states that would bar transgender students from playing on the sports teams that match their gender identity. Those laws have already been passed in five states.
Also, the Department of Education has not announced any changes to how specific cases will be handled. And, the process of resolving a conflict most often has to wait for a formal complaint to be filed and an investigation pursued.
What will happen in the states?
The announcement by the Department of Education (DOE) puts states on notice that gay and transgender students have the right to be free from discrimination in their education, including in athletic opportunities. However, some experts believe that schools may simply ignore the DOE’s position, especially if it runs contrary to state law. If they do, it will be up to the DOE to enforce those protections, and that could be controversial. The DOE may be reluctant to press the issue.
In any case, there is still much work to be done to provide effective protections for LGBTQ+ students. The DOE has heard from thousands of stakeholders on its survey of sexual harassment, sexual violence and discrimination based on sexual orientation and gender identity. It is still working to synthesize that information. The agency knows that people are waiting for answers and plans to move as quickly as possible.
Leigh Law Group represents students in Title IX cases.