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DOE Announces New Legal Interpretation: Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity

Last week, in a major break from its policy under the Trump administration, the US Department of Education's Office for Civil Rights issued a Notice of Interpretation, explaining that it will enforce Title IX's prohibition against sex discrimination to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.
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The Department’s interpretation stems from the US Supreme Court's decision in Bostock v. Clayton County, issued one year ago, holding 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.

Explained Secretary of Education Miguel Cardona, "[t]he 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." "Today”, he added, “the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination."

Said Acting Assistant Secretary for Civil Rights Suzanne B. Goldberg, "[t]he 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." She continued, "[a]s part of our mission to protect all students' civil rights, it is essential that OCR acts to eliminate discrimination that targets LGBTQ+ students".

The Department of Education’s new interpretation means that the Office of Civil Rights will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive financial assistance from the Department.

This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.

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