The U.S. Department of Education has proposed new rules that clarify that Title IX of the Education Amendments of 1972 prohibits school-based discrimination based on sexual orientation or gender identity.
Title IX uses the same statutory language, prohibiting discrimination “because of sex,” as Title VII of the Civil Rights Act of 1964. That means that when the U.S. Supreme Court ruled on that language in 2020’s Bostock v. Clayton County, legal scholars expected the ruling to apply to Title IX. In the 6-3 Bostock opinion, the high court explained that homosexuality and transgender status are aspects of sex. In previous cases, the court had also said that discrimination against non-gender-conforming people was illegal in employment.
The new rules are an update of 2021 rules stating that all schools that receive federal funding must be non-discriminatory toward gay and trans people. Last summer, the Department of Education held public hearings about the rulemaking. The final rules are being reviewed by the White House.
Does this mean transgender kids can participate in sports?
The regulations haven’t been finalized but, according to the Washington Post, they clearly prohibit discrimination against transgender students. Whether that means trans kids must be allowed to participate on teams that match their gender identity is still unclear.
What is clear is that the new rules would directly challenge new laws in 12 states that ban transgender girls and women from competing in girls’ and women’s sports. These laws argue that trans females have biological advantages over cisgender females, so it would be unfair to allow them to compete with cisgender females. However, it is unclear whether the majority of trans girls really do have those perceived advantages or if this argument is a form of stereotyping.
Is the ability to participate on the team that matches your gender identity a right? Title IX broadly protects the rights of all students to participate in sports and to feel welcome doing so.
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion and discrimination,” the education secretary said last year, “and our LGBTQ+ students have the same rights and deserve the same protections.”
A draft of the rules obtained by the Washington Post reads, ““Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”
Leigh Law Group represents the LGBTQ community in education, civil rights and employment law throughout California.