Emma Powys MauriceTue, 6 April 2021, 5:40 pm
Joe Biden’s Department of Justice has confirmed that anti-LGBT+ discrimination is banned in schools, overturning Trump’s cruellest decree once and for all.
In a memo to federal agencies published on Monday (5 April) the DOJ confirmed that the 1972 education civil rights law known as Title IX should be read as covering LGBT+ students.
That means federal law officially prohibits discrimination on the basis of gender identity and sexuality in all federally-funded education institutions – an idea the Trump administration had been battling against for four years.
“The Department of Justice, the nation’s top legal enforcement agency, made it clear that the law is on the side of LGBTQ students,” said the Human Rights Campaign as it celebrated the news.
“This memorandum will allow students, parents, and teachers to advocate for nondiscriminatory policies for LGBTQ students,” the advocacy group continued.
“Students who experience discrimination based on their sexual orientation or gender identity should feel confident filing complaints with the Department of Education.
“We are thankful to president Biden and his administration for following through with their promise to implement the Supreme Court’s decision in Bostock v Clayton County, and we look forward to seeing our leaders continue to defend the rights of LGBTQ people in the weeks and months to come.”
Title IX was enacted as a follow-up to the passage of the Civil Rights Act of 1964 and bans discrimination “based on sex” in education.
Its exact interpretation was called into question in 2017, when then-secretary of education Betsy DeVos withdrew Obama-era guidelines which stated the stipulation “based on sex” covered LGBT+ students.
Speaking at the time, she insisted the Trump administration “remained committed” to investigating all claims of discrimination, bullying and harassment of vulnerable students – yet she was determined they wouldn’t be protected at a federal level.
Shortly after this DeVos issued specific guidance to schools confirming that LGBT+ students were not protected under Title IX.
That all changed last year, when the Supreme Court ruled that the term “based on sex” in Title VII of the 1964 Civil Rights Act prohibiting employment discrimination did in fact cover gender identity and sexual orientation.
The case for LGBT+ rights was argued by out Stanford law professor Pamela Karlan, who is now Joe Biden’s head of the DOJ’s civil rights division – and as one of her first acts in the job, she made sure that landmark ruling applied to schools and universities, too.
In the three-page memo, Karlan explains that the reasoning in Bostock regarding employment protections can be easily applied to discrimination protections in education.
She cites a few lower court judges that have already said just that, both in cases where trans students were banned from using the bathroom that corresponds with their gender.
This will prove crucial in the months and years ahead as the Biden administration prepares to battle the 192 anti-LGBT+ bills currently under consideration in state legislatures across the country.
Of those, 93 directly target transgender people – many of them specifically in schools and university – and that depressing number is only getting higher.