Biden administration says federal law protects LGBTQ kids from discrimination

The Biden administration recently sent a signal to state lawmakers that legislation aimed against LGBTQ youth will not be tolerated, legal experts and civil rights advocates people say.

The Hill reported on Monday that the U.S. Department of Justice’s Civil Rights Division released a memorandum on March 26 instructing federal agencies that Title IX of the Education Amendments of 1972, the federal civil rights law that bars discrimination on the basis of sex in schools and education programs that receive federal funds, applies to LGBTQ youth.

According to the memo, several agencies had asked the Civil Rights Division how to apply the Supreme Court’s ruling on discrimination in Bostock v. Clayton County to Title IX after President Joe Biden issued an executive order on Jan. 20 implementing it across federal agencies. In Bostock, the court ruled that sex-based discrimination in employment under Title VII of the Civil Rights Act of 1964 includes anti-LGBTQ discrimination.

The memorandum says that prohibitions against sex discrimination under Title VII and Title IX are alike and that “the Supreme Court and other federal courts consistently look to interpretations of Title VII to inform Title IX.”

A record number of bills aimed at curtailing the rights of LGBTQ people, and specifically transgender youth, were introduced in the most recent state legislative sessions.

In Arkansas, lawmakers passed three anti-LGBTQ bills, two of which have been signed into law by Republican Gov. Asa Hutchinson: legislation that says transgender girls and women can’t play on girls and women’s athletic teams from elementary school to college, and legislation that LGBTQ groups say will allow pharmacies, hospitals, and medical practitioners to deny services to LGBTQ people.

Hutchinson vetoed a bill that would prevent medical providers from providing transgender youth with gender-affirming health care, saying that it was “over broad, extreme and does not grandfather those young people who are currently under hormone treatment.” On Tuesday, both houses of the Legislature voted to override the veto, making Arkansas the first state in the country to enact a ban on affirming medical care for trans youth.

Laws have also been enacted by Republican-controlled legislatures and Republican governors in Tennessee and Mississippi that ban transgender athletes from playing on the sports team of their gender.

South Dakota also passed such a ban, but Republican Gov. Kristi Noem sent the bill back to the legislature with recommended changes. After the bill died, she issued executive orders that girls who wanted to play in girls sports had to provide birth certificates or affidavits essentially showing that they were cisgender girls and telling colleges to pursue similar bans. Legislation prohibiting transgender athletes from playing on the sports team corresponding to their gender has also advanced in Montana.

Sharon McGowan, chief strategy officer and legal director at the civil rights organization Lambda Legal, stated, “Lawmakers across the country have just received very clear notice that DOJ views anti-LGBTQ discrimination as within the scope of Title IX’s protections.”

The Human Rights Campaign tweeted, “This means the Department of Education will take & investigate complaints of sexual orientation/gender identity discrimination at schools receiving federal funding.”

McGowan said in an interview that the memorandum makes it clear the federal government is ready for any complaints and concerns about anti-LGBTQ discrimination.

“We’re now in a position where the federal government is, I think, revving its engine,” she said. “We don’t know exactly where where it will go, but everything that’s happening right now is making it clear that states have no lack of clarity about where the federal government stands on this issue.”

Although the memorandum doesn’t direct agencies to enforce this interpretation of Title IX in relation to the Bostock decision in any particular way, McGowan said there are a number of things the Biden administration could do to respond to these legislative efforts.

“With a law that is so blatantly denying students educational opportunity, they may take a state out of compliance with respect to their federal obligations that are necessary to conform to in terms of their receipt of federal dollars,” she said. “So there’s a couple of different ways that enforcement can play out in these spaces. And then there’s obviously also private lawsuits where the federal government can intervene.”

Chase Strangio, a staff attorney and deputy director for transgender justice at the American Civil Liberties Union, said in an interview on March 30 that the ACLU is investigating initiating lawsuits against transgender sports bans.

“In every single state that has passed a bill, we are looking for plaintiffs,” Strangio said.

Published with permission of The American Independent Foundation.