Determination May Be Contrary to Law and Likely to be Reversed.
By John F. Banzhaf III
In a little noticed ruling last Friday, the Office of the General Counsel of the Department of Education determined that LGBTQ students are not expressly included in protections under Title IX, the law that prohibits sex discrimination at federally funded institutions, including colleges and universities.
The decision, set forth in a memorandum, states that the agency’s Office for Civil Rights [OCR] should consider only certain kinds of discrimination based on LGBTQ factors, and that the word “sex” means “biological sex, male and female.”
So, for example, since Title IX permits schools to have separate restrooms, locker rooms, and shower facilities based upon “sex,” a transgender student not permitted to use such a sex-segregated facility based upon sexual identity, rather than biological-anatomical sex, would not have a valid complaint of illegal discrimination under Title IX.
Such a position appears to directly contradict several recent federal appeals court decisions.
It also appears inconsistent with the Supreme Court’s recent landmark ruling in Bostock v. Clayton County in which it held that “sex” under Title VII (a closely related federal statute) should be interpreted to include LGBTQ people when they face discrimination based on their sexual orientation or gender identity.
But this ruling is likely to be reversed very quickly after Joe Biden becomes president, and his nominee for education secretary, Miguel Cardona, heads the department.
Banzhaf III, B.S.E.E., J.D., Sc.D., is a Professor of Public Interest Law at George Washington University Law School. For more, visit index (banzhaf.net)
