ABOVE: Photo by National_Progress_Party, from Wikimedia Commons.
The Biden administration made official on Wednesday its position that discrimination against LGBTQ kids in schools is illegal under federal law at a time when states have enacted measures prohibiting transgender kids from playing in school sports or obtaining transition-related health care.
The Education Department, in a notice of interpretation signed by Secretary of Education Miguel Cardona, declared it would enforce Title IX of the Education Amendments of 1972, which bars discrimination on the basis of sex in schools, to prohibit discrimination both on the basis of sexual orientation and gender identity.
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections” Cardona said in a statement. “I’m proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination. Today, the Department makes clear that all students — including LGBTQ+ students — deserve the opportunity to learn and thrive in schools that are free from discrimination.”
In contrast, the Trump administration had interpreted Title IX to exclude cases of anti-transgender discrimination in schools. In fact, the Justice Department under former President Trump filed a legal brief in defense of an Idaho law against transgender kids in sports in ongoing litigation against the statute.
Just this year, a number of states have enacted similar laws. Florida Gov. Ron DeSantis, a potential 2024 presidential candidate, said upon signing into law a measure banning transgender kids, that status would go “based on biology.” Arkansas has enacted a law over the veto of its governor making criminal the providing of transition-related care to transgender kids.
The notice of interpretation is consistent with the executive order President Biden signed on his first day in office instructing federal agencies to prohibit anti-LGBTQ discrimination to the furthest extent possible in the wake of the U.S. Supreme Court’s decision in Bostock v. Clayton County. In his executive order, Biden specifically spelled out students should be able to go school without being “denied access to the restroom, the locker room or school sports.”
It wasn’t immediately clear whether the Biden administration would follow up on the memo with legal action against states with anti-transgender laws. The Education Department didn’t immediately respond to an inquiry on the issue.
The White House has consistently referred questions on whether the Biden administration would take up legal action against states enacting anti-transgender laws to the Justice Department, which hasn’t responded to multiple requests for comment.
