Revised Title IX Regulations Protect LGBTQ Students

The U.S. Department of Education overhauled regulations implementing Title IX of the Education Amendments of 1972 on April 19 to bolster protections for LGBTQ students, raising compliance obligations for schools and institutions of higher education. The regulations will take effect Aug. 1. We’ve gathered articles on the news from SHRM Online and other outlets.

Purpose of the Regulatory Action

Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” absent certain exceptions.

The department amended the final regulations to provide greater clarity regarding: the definition of “sex-based harassment”; the scope of sex discrimination, including recipients’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and recipients’ obligation to provide an educational environment free from discrimination on the basis of sex.

Additionally, the regulations aim to fulfill Title IX’s protection for students, teachers and other employees in federally funded elementary schools, secondary schools and postsecondary institutions against all forms of sex discrimination, including sex-based harassment and sexual violence.

The final regulations will help to ensure that all students receive appropriate support when they experience sex discrimination and that recipients’ procedures for investigating and resolving complaints of sex discrimination are fair to all involved.

(Federal Register)

High Court Decision Interpreted to Apply to Students

Through the new regulations, the administration moved to include students in its interpretation of Bostock v. Clayton County, the 2020 Supreme Court decision in which the court ruled that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination.

The new rules provide more flexibility in how schools conduct investigations, adding something that advocates and schools had lobbied for. They retain key provisions from the current rules instituted to provide more due process for accused students as well as supportive measures for victims. The department, however, said it would hold schools to a higher standard when determining whether they had properly handled cases than what it called the “deliberately indifferent” standard under the current rules.

(The New York Times)

Supreme Court Ruling

“An individual’s homosexuality or transgender status is not relevant to employment decisions,” wrote Justice Neil Gorsuch for the court in Bostock. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

(SHRM Online)

Rules’ Possible Effects

Ten states require transgender students to use bathrooms and locker rooms that align with their biological sex identified at birth, according to tracking by the Movement Advancement Project. Some school districts will not use the pronouns corresponding with a trans student’s gender identity. Both situations might constitute violations of Title IX under the new regulations. In addition, if a school failed to properly address bullying based on gender identity or sexual orientation, that, too, could be a violation of federal law.

Rep. Virginia Foxx. R-N.C., chairwoman of the House Committee on Education & the Workforce, called the regulations an escalation of Democrats’ “contemptuous culture war that aims to radically redefine sex and gender.” The department, she said, has put decades of advancement for women and girls “squarely on the chopping block.”

(The Washington Post)

Transgender Athletes Not Addressed

Notably absent from the new regulations are any mention of transgender athletes. The Biden administration originally planned to include a new policy forbidding schools from enacting bans on transgender athletes, but that provision was put on hold during this election year.

(AP)