The Department of Education said Wednesday it would interpret Title IX of the Education Amendments of 1972 to include cases of discrimination based on 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. 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,” Education Secretary Miguel Cardona said in a statement released by the agency.
The department’s decision reverses the Trump administration’s policy.
It also could call into question Title IX exemptions granted to faith-based colleges and universities, many of which claim that religious tenets permit them, for example, to restrict married student housing to heterosexual couples only.
The Education Department’s civil rights office issued a “Notice of Interpretation” that will appear in the Federal Register, a first step in its being implemented as federal policy.
The filing noted an ongoing civil case, Doe v. University of Scranton, in which the Jesuit-affiliated university failed to protect a housemate allegedly harassed over sexual orientation.
That citation raises the question of how the agency will move forward in Hunter v. Department of Education, an Oregon case where a coalition of LGBTQ+ students are asking for an end to religious exemptions to Title IX. The Religious Exemption Accountability Project claims such exemptions are unconstitutional.
Last week, the Biden Justice Department watered down a court filing, saying the government would “vigorously defend” the exemptions. Within 24 hours of that June 8 filing, the DOJ removed any mention of “vigorous” from its filing in the Hunter case, saying it would only “adequately” defend such measures.
A spokeswoman at the Council for Christian Colleges and Universities, which submitted a motion to join the Hunter case as an intervenor, did not immediately have a comment on the Education Department’s new Title IX filing.
Last year, the Supreme Court ruled in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is the same as sex discrimination, which is illegal.
