Education Dept. 'rewriting' Title IX by expanding protections for LGBT students, critics say

By Ryan Foley, Christian Post Reporter Friday, June 18, 2021

Conservative groups are accusing the U.S. Department of Education of “rewriting” federal civil rights law after the agency issued a notice explaining that Title IX law banning sex discrimination will be interpreted to apply to gender identity and sexual orientation.

The Department of Education issued a “Notice of Interpretation” Wednesday announcing that it has determined that Title IX of the Education Amendments of 1972 prohibiting discrimination based on sex also “prohibits discrimination based on sexual orientation and gender identity.”

The notice cited the Supreme Court’s decision in Bostock v. Clayton County, which found that discrimination based on sexual orientation and gender identity violated Title VII of the Civil Rights Act of 1964, as the basis for its decision.

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"This interpretation will guide the Department in processing complaints and conducting investigations, but it does not itself determine the outcome in any particular case or set of facts," the notice reads. 

In a statement, Secretary of Education Miguel Cardona cheered his department’s interpretation of Title IX, which comes approximately one year after the Supreme Court’s decision in Bostock.

“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," he said. "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." 

The secretary assured that his agency is making clear that all students "deserve the opportunity to learn and thrive in schools that are free from discrimination.”

The Department of Education’s notice received immense backlash from conservative groups.

The American College of Pediatricians, which has voiced concerns with the affirmation of transgender identity in children, warned that the Biden administration document "mandates a false definition of sex upon American students.”

“Schools will now be forced to allow biologically male students access to all female-only spaces,” the conservative doctor association warned. “They will be housed with females during overnight school trips and events, participate in female-only sports, and displace females from female-only sports teams. This interpretation is unscientific and a clear threat to the health and safety of female students.”

In a statement, American College of Pediatricians Executive Director Dr. Michelle Cretella argued that "female students lose their rights to privacy and safety in education and fair play in sports.”

“Due to a combination of genetics and sex hormones, males are bigger, stronger and faster than females. Males are also more violent and aggressive than females," Cretella added.

“Males who self-identify as female, including those who take estrogen, remain genetically male and therefore have no objective reason — let alone a right — to share restrooms and locker rooms, or to be housed with or competing against females.”

Christiana Holcomb, an attorney with the legal nonprofit Alliance Defending Freedom who represents female athletes in ongoing litigation against policies that allow biological males who identify as females to compete in women’s sports, took to Twitter to accuse the Department of Education of “effectively rewriting #TitleIX.”

She described the “politically motivated charge” as “inconsistent with #TitleIX and the real physical differences between males and females.”

“#TitleIX exists precisely to ensure that women and girls have equal opportunities in education, including in sports," Holcomb added. "Girls and women deserve better than having their opportunities stripped away in service of harmful ideology."

#TitleIX exists precisely to ensure that women and girls have equal opportunities in education, including in sports. Girls and women deserve better than having their opportunities stripped away in service of harmful ideology. #SaveWomensSports#fairplay#sexnotgenderpic.twitter.com/tcysJflcSA

— Christiana Holcomb (@ChristianaADF) June 16, 2021

The Department of Education’s notice comes as several states have passed laws requiring athletes to compete on sports teams that correspond with their biological sex instead of their gender identity.

Last week, Cardona hinted that his department would take action against states that have passed such laws, telling ESPN that “we do have a responsibility to protect the civil rights of students."

"[A]nd if we feel the civil rights are being violated, we will act," he stressed.

Wednesday’s notice is the latest example of the Biden administration’s LGBT advocacy.

On his first day in office, President Joe Biden signed an executive order banning discrimination based on sexual orientation and gender identity at government agencies. The order declared that “children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”

Additionally, the Biden administration has reversed a Trump-era ban on transgender individuals serving in the military. 

The Biden administration has expressed support for the Equality Act, which would codify nondiscrimination protections for the LGBT community into federal civil rights law. In a previous interview with The Christian Post, Beth Stelzer of the advocacy group Save Women’s Sports asserted that the Equality Act “erases what a woman is.”

The Save Women’s Sports homepage currently includes an announcement proclaiming that the “U.S. Department of Education Erased Title IX,” accompanied by a link to the Department’s announcement about the “Notice of Interpretation.”