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Education Department officials on Wednesday announced transgender students are protected under Title IX, a reversal from the Trump administration's rescission of Obama-era discrimination protections for transgender people.
The agency’s interpretation of the law, which now includes prohibiting discrimination based on sexual orientation and gender identity, is expected to roil an already tense policy showdown between the federal government and states over transgender student rights.
The department’s Office for Civil Rights has vowed to “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance from the department.”
For now, it is unclear what actions the department will take against states that have passed laws in recent months to ban transgender women and girls from participating on sports teams that match their gender identity.
"Multiple federal appeals courts agree that Title IX protects transgender students from discrimination and two federal courts have specifically supported trans students participating in school sports,” said Josh Block, senior staff attorney with the ACLU LGBTQ & HIV Project.
The Education Department’s new interpretation, based on the landmark Supreme Court ruling in Bostock v. Clayton County, also makes good on President Joe Biden’s January executive order that said the court case about transgender rights applies to Title IX.
“Additionally, the Bostock decision affirmed that laws banning sex discrimination apply to discrimination against transgender people,” Block added. “This welcome announcement from the Biden administration is yet another signal that they will enforce the law consistent with these court decisions and not use transgender students as political pawns."
Last year, Idaho became the first state to enact a law banning transgender student athletes from participating in sports teams that match their gender. Since Biden's executive order, conservative state lawmakers and Republicans in Congress have introduced and passed a raft of legislation to rebuke the president’s efforts to promote inclusion for transgender people.
Mississippi Gov. Tate Reeves, a Republican, was the first to sign a bill into law this year that limits the rights of transgender athletes. Before signing it, he wrote on Twitter that the legislation would “protect young girls from being forced to compete with biological males for athletic opportunities.”
“It’s crazy we have to address it, but the Biden E.O. forced the issue,” Reeves wrote.
Supporters of the limitations on transgender students had a champion in the White House with President Donald Trump, whose Education Department scrapped an Obama-era directive that protected those students under Title IX.
The agency also later determined that the high court’s decision last summer on protections for LGBTQ workers under Title VII “does not control” its interpretation of the Title IX rule on discriminating based on sex. It said that it would not enforce that law because Congress "specifically" designed it "to apply only to workplaces."
“The Court provided numerous examples to illustrate why ‘it is impossible to discriminate against a person’ because of their sexual orientation or gender identity ‘without discriminating against that individual based on sex,’” the department’s notice of interpretation reads.
OCR also wrote that it will open investigations of “allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities,” which includes extracurriculars like participation on sports teams.
“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,” Education Secretary Miguel Cardona said Wednesday in a statement.