The Department of Education is about to release new rules clarifying that Title IX of the Education Amendments of 1972 protects students from discrimination on the basis of sexual orientation and gender identity, not just discrimination on the basis of whether they are male or female.
The Washington Post reported Wednesday that the formal regulation will likely be released in April and will undoubtedly toss gasoline on the current conflict over how to treat transgender girls who wish to compete against cisgender girls in youth sports.
It seemed nearly inevitable that these regulations would come after the Supreme Court ruled in 2020 that federal workplace discrimination protection laws covered LGBT employees. In the 6–3 ruling in Bostock v. Clayton County, written by Justice Neil Gorsuch, the majority ruled that the word sex in Title VII of the Civil Rights Act of 1964—which prohibits workplace discrimination for categories like race, sex, national origin, or religion—also protects people from discrimination on the basis of being gay or trans.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote in the decision. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
At the time the Supreme Court debated Bostock, justices were well aware that a decision about what sex discrimination meant was going to end up affecting how other federal laws are interpreted. In his dissent in Bostock, Justice Samuel Alito warned that the issue would come up again over participation in women’s sports: “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.”
There’s a lot more to an anti-discrimination order than participation in women’s sports, but that’s where the culture war is right now and we should expect that to get more attention than anything else. It may drown out other discussions, including the part of the order that’s probably uncontroversial to most people—that public schools generally shouldn’t be discriminating against LGBT students in other areas or treating them differently from other students. As it stands, the Department of Education already revised its interpretation of Title IX in 2021 to say that schools receiving federal funding cannot discriminate against gay or trans students.
The trans sports debate might also end up drowning out discussion of changes that might undermine due process protections for students accused of harassment or sexual misconduct. According to The Washington Post, the Biden administration is looking to ease rules put into place under former Education Secretary Betsy DeVos that pushed for the schools to recognize the presumption of innocence for those accused of misconduct.
A reversal here is bad news. Public universities have consistently been violating the due process rights of students who have been accused of sexual misconduct, depriving them of defenses and the ability to confront accusers. Courts have been slapping down some of the bad practices that were encouraged by the Department of Education under former President Barack Obama.
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