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Secretary Cardona: Title IX the ‘Strongest Tool’ in Protecting Educational Opportunities Free from Sex Discrimination
Jun 25th, 2021 by billhowe

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FOR IMMEDIATE RELEASE
June 23, 2022
Contact: Press Office
(202) 401-1576 or press@ed.gov
Secretary Cardona: Title IX the ‘Strongest Tool’ in Protecting Educational Opportunities Free from Sex DiscriminationU.S. Secretary of Education Miguel Cardona today issued the following statement in recognition of the 49th anniversary of the Title IX of the Education Amendments of 1972, commonly known as “Title IX.”“Today marks 49 years since the passage of Title IX, the strongest tool we have to protect every student’s right to equal access to educational opportunities free from sex discrimination. Because of this landmark rule, our nation has made important progress toward realizing our self-concept as a land of opportunity for all—from increasing equality in science, technology, engineering and math education; to enabling and encouraging more women and girls to participate in sports; to ensuring fairer funding in athletic programs; to protecting students from sex discrimination, including sexual violence. Amid this progress, we recognize there is still more to do, when we know that students still experience harassment, exclusion from school activities, and other forms of discrimination that stand in the way of them reaching their full potential and their dreams. I’m proud of the actions the Biden-Harris Administration has taken so far in ensuring that Title IX protects the civil rights of all students, including LGBTQ+ students, in our schools and on college campuses. As Secretary of Education, I am committed to ensuring Title IX works for all students and provides equal access to opportunities that will enrich students’ educational experiences and their futures.”*** In observance of Title IX’s 49th anniversary, the U.S. Department of Education’s Office for Civil Rights today issued a Dear Educator Letter and, in conjunction with the U.S. Department of Justice’s Civil Rights Division, a new fact sheet: Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families.The Department of Education’s Dear Educator Letter is available here.  The Department of Education and the Department of Justice’s fact sheet, Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families, is available here.###

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US Education Department interprets Title IX to protect LGBTQ+ students
Jun 20th, 2021 by billhowe

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Kashish Khandelwal | National Law U. Delhi, INJUNE 19, 2021 03:00:25 PM

The US Department of Education issued a notice of interpretation Wednesday to extend Title IX’s prohibition on sex-based discrimination to gender identity and sexual orientation, reversing the opposite stand taken by the Education Department under the Trump administration.

Title IX of the Education Amendments of 1972 prevents sex-based discrimination in any education program offered by a beneficiary of federal financial aid from the department. Title IX’s new interpretation is based on the US Supreme Court’s verdict in Bostock v Clayton County in which the court held that discrimination based on gender identity or sexual orientation inherently involves discrimination based on sex. Although the Bostock decision interpreted Title VII only, the notice said that the court’s reasoning is also applicable to Title IX.

US Secretary of Education Miguel Cardona said:

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 protection. 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.

Further, the notice stated that the new interpretation overrides any previous contradictory statements made by the department about the scope of Title IX’s jurisdiction over discrimination based on gender identity and sexual orientation. However, it affirmed the exemption of educational institutes controlled by religious organizations from the application of Title IX.

The interpretation comes after President Joe Biden signed an executive order in March guaranteeing an educational environment devoid of discrimination based on sex, including gender identity and sexual orientation.

Recently, the Education Department’s Office for Civil Rights also reported that LGBTQ+ students experience additional challenges in school, including disproportionate harassment, bullying and victimization, which were worsened by the COVID-19 pandemic.

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U.S. DEPARTMENT OF EDUCATION SENDS MIXED MESSAGES ON BOSTOCK’S APPLICATION TO TRANSGENDER STUDENTS UNDER TITLE IX
Oct 16th, 2020 by billhowe

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Harvard Civil Rights-Civil Liberties Law Review

In June of this year in its Bostock v. Clayton County decision, the Supreme Court held for the first time that Title VII’s prohibition on sex discrimination in employment also prohibits discrimination against an individual based on their sexual orientation or transgender status. Because of Title VII’s close connection to Title IX, the statute which protects against sex discrimation in the education context, many expected changes to Title IX enforcement as well following the Bostock decision. The U.S. Department of Education, however, has sent mixed messages on how the ruling will (or will not) impact its enforcement of Title IX.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The Court in Bostock held that discrimination on the basis of an individual’s sexual orientation or transgender status did in fact constitute unlawful discrimination on the basis of “sex,” based on the plain meaning of the word. An employer discriminating against a male employee because of his attraction to other men, for example, presumably would not discriminate against him if he were instead a woman attracted to men. The basis of the discrimination, then, is due to the sex of that employee.

Title IX of the Education Amendments of 1972 applies similar protections against discrimination on the basis of sex in the context of education programs receiving federal assistance. The two statutes were not enacted as part of the same legislation, and employ different language in their prohibitions: Title VII prohibits discrimination “because of . . . sex” and Title IX prohibits discrimination “on the basis of sex.” However, as the 8th Circuit has explained, the two phrases are treated interchangeably under Title VII. Due to the similar language and substantive similarities, Title VII caselaw regularly informs Title IX caselaw and interpretation, with courts looking to Title VII decisions to inform their treatment of Title IX claims.

This now widely-accepted overlap in statutory interpretation is precisely why the U.S. Commission on Civil Rights urged the Trump Administration to reform policies under Title IX to come into compliance with the Supreme Court’s Bostock interpretation of “sex” under Title VII. 

Unlike Title VII, Title IX does not explicitly provide for a private right of action for someone to sue based on alleged sex-based discrimination (althought the Supreme Court held that such a private right is implicit in the statute and therefore available). Instead, TItle IX has largely served as a regulatory law, allowing the U.S. Department of Education to promulgate rules and issue guidance around compliance with the statute. The Department’s Office of Civil Rights (OCR) is responsible for investigating and resolving Title IX complaints, but can also initiate investigations. These investigations can result in an education program losing its federal funding. Being able to determine fundamental issues like what will constitute “discriminat[ion],” and when such discrimination will be considered “on the basis of sex” is a huge amount of power for the Department. This is especially true when one considers the scope of the protections; Title IX reaches sexual assault investigation procedures at colleges and universities, opportunities for participation in school sports teams, and employment practices at entities which contain an education program, to name a few. 

As it relates to transgender students specifically, Title IX protections have fluctuated depending on the administration. Under the Trump Administration, Betsy DeVos has rolled back much of the Obama-era Title IX protections for these students. In 2017, the Department rescinded guidance issued in 2015 and 2016 which had stated that Title IX required students be admitted in sex-segregated facilities based on their gender identity (as opposed to biological sex). In June of that year, the Department chose to close OCR investigations of discrimination against transgender students, and in 2018, announced it would no longer accept complaints from transgender students related to their acces to sex-segregated bathrooms that match their gender identity. In May of 2020, the Department issued a letter to a handful of Connecticut public school districts and the Connecticut Interscholastic Athletic Conference threatening to withhold federal funds due to their allowing transgender athletes to participate in school sports in accordance with their gender identity.

Following the Bostock decision, the Department of Education has sent mixed messages as to how it plans to apply the ruling (or not) to its Title IX enforcement. Notably, the OCR website was updated to say both that “Bostock does not control the Department’s interpretation of Title IX” but that “nevertheless . . . the Bostock opinion guides OCRs understanding that discrimination against a person based on their status as homosexual or transgender generally involves discrimination on the basis of their biological sex.” This would seem to indicate that the Department did intend to apply Bostock to Title IX enforcement, even while recognizing the undisputed fact that the decision only explicitly applied to Title VII. However, immediately following the language quoted above, OCR lists a number of “resources” with “further information on OCR’s interpretation of Title IX in light of Bostock.” Seemingly in direct contradiction to its proclamation that discrimination based on gender identity or sexual orientation is sex discrimination, the list of resources includes an updated letter to the Connecticut schools under investigation, in which the Department doubles down on its initial position that allowing transgender athletes to participate based on their gender identity violates Title IX, explicitly stating that Bostock does not apply. To add an extra layer of confusion, the list of resources also includes a response letter to a complaint of discrimination based on sexual orientation in which OCR agrees that such discrimination would constitute a Title IX violation, also explicitly citing Bostock.

It’s not clear that the Department’s differentiation between transgender students and queer students under Title IX is a consistent one, especially given its explicit statement that both forms of discrimination would be unlawful. Besides the internal inconsistencies of its own enforcement, there seems to also be tension with how courts have applied Bostock to Title IX cases: the 4th Circuit and the 11th Circuit each ruled prohibiting a transgender student from using the bathroom aligned with their gender identity was a violation of Title IX under Bostock precedent. If it continues to crop up in circuit courts, this may be a question that ultimately is resolved by SCOTUS, this time, without Justice Ginsburg on the bench.

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Protecting Civil Rights While Responding to the Coronavirus Disease 2019 (COVID-19)
Apr 29th, 2020 by billhowe

Statement by Assistant Attorney General for Civil Rights Eric S. Dreiband

In light of the Public Health Emergency concerning the coronavirus disease 2019 (COVID-19), the Civil Rights Division of the United States Department of Justice is issuing this statement to ensure that victims of illegal discrimination know where to turn when their civil rights are violated.

Read here ……..

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“How to File an OCR Complaint”
Apr 26th, 2020 by billhowe

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