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Education Department Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity

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The U.S. Department of Education’s Office for Civil Rights issued a Notice of Interpretation explaining that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance.

The Department’s interpretation stems from the landmark U.S. Supreme Court decision in Bostock v. Clayton County, issued one year ago this week, in which the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex.

“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. 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,” said U.S. Secretary of Education Miguel Cardona. “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.”

As OCR recently reported, LGBTQ+ students often face additional challenges in schools, including disproportionately experiencing persistent bullying, harassment, and victimization. The vulnerability of LGBTQ+ students has only increased during the COVID-19 pandemic, leaving them without access to school-based mental health services and other supports. One survey found that 78 percent of transgender and nonbinary youth reported that their mental health was “poor” either most of the time or always during COVID-19, compared with 61 percent of cisgender youth.

“The Department of Education strives to provide schools with the support they need to create learning environments that enable all students to succeed, regardless of their gender identity or sexual orientation. Equity in education means all students have access to schools that allow them to learn and thrive in all aspects of their educational experience,” said Acting Assistant Secretary for Civil Rights Suzanne B. Goldberg. “As part of our mission to protect all students’ civil rights, it is essential that OCR acts to eliminate discrimination that targets LGBTQ+ students.”

Today’s Notice of Interpretation continues OCR’s sustained effort to promote safe and inclusive schools for all students, including LGBTQ+ students. This action is part of the Biden-Harris Administration’s commitment to advance the rights of the LGBTQ+ community, set out in President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity and the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

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august 2021

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