Anti-discrimination protections for K-12 students exist in a patchwork of varying federal court interpretations, state laws and local ordinances. During the Obama administration, federal agencies issued guidance clarifying that Title VII and Title IX could be interpreted to prohibit discrimination of transgender employees and students. In 2017 the Department of Justice rescinded 25 guidance documents, and in 2018 it rescinded 24 additional guidance documents on a wide range of issues, including education law and policy. When the Trump administration rescinded federal guidance, a controversy ensued about whether the federal statutes that prohibit discrimination based on sex also protect transgender individuals from discrimination.
In 2020, the Supreme Court held that the plain language of the historic 1964 civil rights legislation that prohibited discrimination based on “race, color, religion, sex or national origin,” also prohibited discrimination based on homosexual or transgender status because it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1778-83 (2020) (Alito, J., dissenting).
Following that decision, the Trump administration released a memo on January 8, 2021, clarifying its position that the Bostock ruling did not apply to Title IX. Taking a sharp U-turn from the Trump administration, the Biden administration signed Executive Order 13988 expanding forms of sex discrimination to include gender identity, gender expression and sexual orientation under Title VII and Title IX, specifically citing the Bostock decision.
This executive order’s language stands in direct contrast with the Trump administration’s stance on legal protections for students based on sexual orientation and gender identity. This shift is a strong indicator of the Biden administration’s priority to enforce the rights of transgender and other LGBTQ students.
Schools should prepare for greater scrutiny at the state and federal level and be prepared to defend their policies and practices against complaints of discrimination based on gender identity and sexual orientation.
This blog post was originally published in KGR’s monthly article for the Indiana Association of School Principals’ client newsletter. Navigating state and federal regulations can be challenging. For more information, contact the KGR Education Law and Public Policy team.