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New Title IX Guidance for Transgender Students in 2021

On June 16th, 2021, the United States Department of Education officially confirmed that Title IX of the Education Amendments Act of 1972 protects students from discrimination and harassment on the basis of sexual orientation and gender identity. In a sharp reversal from the policies of Trump Administration, the updated guidance sets forth that transgender students are entitled to Title IX protections.

At Duffy Law, we stand up for the rights of students and employees of educational institutions nationwide. Our legal team wants to make sure that vulnerable students and their families have a full understanding of their rights under federal law. In this article, our Title IX attorneys provide an overview of the new Title IX guidance for transgender students in 2021.

Title IX: Understanding the Basics

As a starting point, it is important to have a basic understanding of Title IX protections. Signed into law by President Richard Nixon, Title IX of the Education Amendments Act of 1972 is a federal civil rights law that strictly prohibits sex-based discrimination at schools, colleges, universities, and other educational institutions that receive federal funding. As most schools rely in part on federal student loans (and other federal financing) most colleges and universities in the United States are subject to Title IX.

The statute states that no individual shall “be excluded from participation in, be denied the benefits of, or be subjected to discrimination” on the basis of their sex. In recent years, there have been debates regarding what, if any, Title IX protections are available for students based on sexual orientation and gender identity. Consistent with the Supreme Court’s decision in Bostock v. Clayton County, the Department of Education has confirmed that transgender students are protected.

2021 Guidance: A Shift in Policy from Previous Administration

On February 23rd, 2017, then administration of former President Donald Trump rescinded Obama-era Title IX guidelines that had previously extended legal protections to students based on their gender identity. The Biden Administration has reversed policy once again—confirming that transgender and gender non-confirming students are protected against discrimination based on their gender identity under Title IX. In a Notice of Interpretation, the Office for Civil Rights for the  Department of Education clarifying the following:

  1. The federal government will enforce Title IX’s prohibition against sex-based discrimination in a manner that includes discrimination on the basis of sexual orientation.
  2. The federal government will enforce Title IX’s prohibition against sex-based discrimination in a manner that includes discrimination on the basis of gender identity and gender expression.

In other words, the Biden Administration is backing rulings made by several federal courts that confirm that transgender students are protected against discrimination and harassment in federally-funded educational settings. This is an important step for the rights of transgender students. As noted in a recent report from the Office of Civil Rights (OCR), “transgender students are more likely to report feeling unsafe at or going to and from school, and being bullied at school.” The re-affirmed guidance may give new legal tools to students who have face discrimination or other adverse treatment on basis of their gender identity or gender expression.

Key Supreme Court Decision: Bostock v. Clayton County

In issuing the latest Notice of Interpretation, the Office of Civil Rights repeatedly refers to the Supreme Court’s 2020 decision in the case of Bostock v. Clayton County. It is one of the most important LGBTQ+ rights decisions in recent years. A landmark civil rights decision, Bostock centered around the case of a man named Gerald Bostock who was fired by his employer (Clayton County, GA) after he openly expressed interest in joining a gay softball league.

Mr. Bostock filed a claim for employment discrimination. However, initially, his claim was dismissed on the grounds that sexual orientation is not a protected class under Title VII of the Civil Rights Act of 1964. On review, the 6-3 Supreme Court majority reversed the decision, finding that sexual orientation and gender identity are inextricably linked to sex. As Justice Neil Gorsuch wrote for the majority, “sex plays a necessary and undisguisable role” in any adverse treatment based on sexual orientation or transgender status.

Put another way, discrimination on the basis of a person’s gender identity or gender expression is, by definition, a form of sex-based discrimination. The Office of Civil Rights is now confirming that the logic that underpins the Title VII decision in the Bostock case also applies to Title IX. In this guidance, the Department of Education is not creating a “new” right for LGBTQ+ students. Instead, the agency is clarifying the rights that these students have always had and that should have been better protected all along.

What the Updated Guidelines Mean for Transgender/Gender Non-Conforming Students

No person should be denied full and equal educational opportunities based on their gender identity or gender expressions. Schools, colleges, and universities that receive federal funding have a proactive responsibility to prevent sex-based discrimination, including sexual orientation discrimination and gender identity status discrimination. Transgender students are entitled to an educational experience that is free from:

  • Discrimination
  • Harassment
  • Violence

Any student who is mistreated based on their transgender status has a right to take legal action to seek justice and accountability. Title IX is a complicated law. Navigating the legal process can be challenging—especially for students who already have so much on their plate. If you have questions about Title IX protections for transgender and gender non-conforming students, an experienced attorney can help.

How the Guidance Will Impact Recent State Laws that Ban Transgender Athletes

In recent months, several states have moved to ban transgender students from playing sports that correspond with their gender identity. According to a report from CBS News, bills that restrict transgender student’s right to participate in athletics that match their gender identity have been signed into law in nine states:

  • Idaho
  • Alabama
  • Arkansas
  • Mississippi
  • Montana
  • South Dakota
  • West Virginia
  • Florida
  • Tennessee

Other similar legislation has been proposed in nearly two dozen other states. Notably, the first state to pass such a law was Idaho. As explained by the American Civil Liberties Union (ACLU), a federal judge blocked Idaho’s law from taking effect. The judge issued a preliminary injunction on the grounds that the state’s ban on transgender athletes violates the 14th Amendment’s equal protection clause. As of June 30th, 2021, Idaho’s law is on appeal before the Ninth Circuit.

There is a clearly strong tension between the recent guidance from the Department of Education and the flurry of state laws that have been enacted to ban transgender students from playing sports consistent with the gender identity. As U.S. Secretary of Education Miguel Cardona told ESPN at the start of Pride Month, the Biden Administration plans to back transgender students’ “right to compete.” A clash between these states’ laws and the Department of Education is likely. At least one case, perhaps the Idaho’s Fairness in Women’s Sports Act could be headed to the Supreme Court.

Get Help From an Experienced Title IX Lawyer Today

At Duffy Law, our Title IX attorneys are committed to protecting and defending your rights. If you have any specific concerns about the new Title IX guidance for transgender and gender non-conforming students, we are more than happy to help. To learn more about what our law firm can do for you or your student, please call us at (203) 946-2000 or send us a message directly online. Initial consultations are always strictly confidential. With an office in New Haven, we provide national representation in Title IX cases.

Felice Duffy

Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.
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