Dive Brief:

• The U.S. Department of Education on Wednesday issued a notice of interpretation, announcing Title IX, the civil rights law preventing sex-based discrimination in federally funded schools, also protects the rights of LGBTQ students. In a press release, the U.S. Secretary of Education Miguel Cardona said all students "deserve the opportunity to learn and thrive in schools that are free from discrimination.”  
• The change follows President Joe Biden's executive orders in January and March meant to curb discrimination based on gender identity and sexual orientation. The interpretation, not yet codified and able to be challenged by future administrations, signals that the Department of Education's Office for Civil Rights will crack down on Title IX violations of LGBTQ students.
• Interpreting Title IX to protect students from discrimination based on sexual orientation or gender identity walks back the department's previous decision under former President Donald Trump, whose administration said Title IX did not protect students from such discrimination and used an OCR case brought against six Connecticut school districts and the Connecticut Interscholastic Athletic Conference to formalize its interpretation in 2020.

Dive Insight:

The decision comes on the heels of the one-year anniversary of Bostock v. Clayton County, a landmark Supreme Court case that found LGBTQ discrimination counts as unlawful sex discrimination in the workplace. In that decision, justices did not weigh in on whether or how the decision applies to schools, leaving those questions up for interpretation and for the justices to take on in a future case. 

This round of Title IX ping-pong by the Biden administration builds on that case, pleasing both civil rights advocates and education leaders, who now have clear guidance for what was previously a gray area between the Supreme Court and the Department of Education.

However, since the interpretation is not codified, it leaves the door open for future reversals unless taken on by the Supreme Court in a separate case specific to schools. One such case, Gavin Grimm v. Gloucester County School Board, brought against a Virginia school board after a transgender student was denied entry into a boys' bathroom, has been in the court's sights for years. However, it was on its way to the federal bench when Trump rescinded Obama-era guidance protecting LGBTQ students under Title IX, which was the basis for the case's appeal, making moot the Supreme Court's decision to hear oral arguments.

The Supreme Court is set to once again consider hearing the case on June 24. 

Meanwhile, additional Title IX concerns remain. Last week, the Department of Education conducted hearings for five days, during which students, lawyers, Title IX coordinators and others provided feedback on the law's regulations, including amendments put in place by former U.S. Secretary of Education Betsy DeVos that were later challenged by several attorneys general. Formal changes to the regulations are in the pipeline.