(Headline USA) The U.S. Education Department on Wednesday expanded its interpretation of federal Title IX regulations to include transgender and gay students, a reversal of Trump-era policy that also flies against proposals in many states to bar transgender athletes from competing against biological girls.
In a new administrative directive that mirrors congressional Democrats’ push to pass HR 5—the so-called Equality Act—the education department said discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of the 1972 federal law intended to protect against sex discrimination in education.
Critics say that such policies do the opposite, however, by undermining gender-fairness in allowing biological males the ability to access female-only programs and facilities based on an arbitrary and subjective standard.
The department claims that the decision is based on last year’s landmark Supreme Court ruling that addressed gay, lesbian and transgender discrimination in employment, according to agency officials.
A legal analysis by the department concluded there is “no persuasive or well-founded basis” to treat education differently.
In announcing the shift, Education Secretary Miguel Cardona said gay, lesbian and transgender students “have the same rights and deserve the same protections” as workers.
“Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination,” Cardona said in a statement.
The policy is not likely to bring immediate, sweeping change but carries the possibility of federal sanctions against schools and colleges that fail to accommodate gay and transgender identities.
Under the federal law, students who face sex discrimination can bring complaints to the Education Department or federal courts. Schools found to have violated Title IX can face a range of penalties as severe as a total loss of federal education funding, although the Education Department has never dealt that punishment.
With its new stance, the department is taking a partisan stand against legislative proposals in a growing number of states that aim to prevent transgender students from participating on female sports teams. Legislators in more than 20 states are considering such bans, and some others have already enacted them.
The new guidance does not explicitly address the question but says it will take action against if students are denied equal access to “academic or extracurricular opportunities” because of their sex, likely paving the way for yet another Supreme Court showdown.
The update drew outrage from conservatives who have pushed to maintain gender integrity in school athletics programs. Christiana Holcomb, legal counsel for the Christian group Alliance Defending Freedom, called it a “politically motivated change” that effectively rewrites the federal statute in order to serve its own politically motivated devises.
“Title IX exists precisely to ensure that women and girls have equal opportunities in education, including in sports,” Holcomb said. “Girls and women deserve better than having their opportunities stripped away in service of harmful ideology.”
Democrats, however, applauded the change.
“As a result of today’s action, LGBTQ students will have strong and clear legal protections from discrimination in schools, and a safe learning environment,” said Rep. Bobby Scott, D-Va., chairman of the House Education and Labor Committee, in a statement.
In 2017, the Trump administration lifted Obama-era guidance forcing schools to grant transgender students access to bathrooms and locker rooms that matched their self-professed gender identities.
At the time, Education Secretary Betsy DeVos said the issue was “best solved at the state and local level” and that the earlier guidance led to a spike in lawsuits seeking clarification.
The new action does not technically reinstate the Obama-era policy but instead clarifies that the Education Department’s Office for Civil Rights will investigate complaints of discrimination involving gay or transgender students.
If the department finds evidence of discrimination based on sexual orientation or gender identity, it will pursue a resolution to “address the specific compliance concerns or violations.”
The new guidance was issued as a “notice of interpretation” and does not carry the force of law. But the shift could be cemented in a policy overhaul that President Joe Biden ordered in March.
Biden’s order directed the Education Department to review all aspects of Title IX—including changes issued last year by DeVos—and “consider suspending, revising or rescinding” policies that ran afoul of the Left’s agenda.
The subject of transgender athletes led to a tense exchange during Cardona’s confirmation hearing when Sen. Rand Paul, R-Ky., said it’s wrong for transgender athletes with biological advantages to compete in girls’ sports.
Cardona pushed back at the March hearing, claiming schools must “respect the rights of all students, including students who are transgender.”
