The U.S. Department of Education Office for Civil Rights announced today (March 30) it will propose a regulation amending its interpretation of Title IX of the Civil Rights Act of 1964. The new regulation would make discrimination against transgender students a violation of federal law. A key sentence of the proposed regulation:
“Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”
This echoes a 2020 U.S. Supreme Court decision (6-3) that Title VII of the Civil Rights Act protects transgender individuals from discrimination in employment (Bostock v. Clayton County). According to the Court majority:
“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Federal rules require that proposed regulations be published in the Federal Register, allowing the public the opportunity to review and provide comment before a new regulation is finalized for enforcement.
The Department of Education’s reconsideration comes as several states have enacted legislation that, among other things, directs that eligibility to participate in K-12 athletics be based on biological sex at birth.
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