Inside Higher Ed

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The United States Department of Education’s Office of the General Counsel published a memorandum on Friday that states that LGBTQ students are not expressly included in protections under Title IX, the law that prohibits sex discrimination at federally funded institutions. Questions about how Title IX applies to LGBTQ students surfaced after the U.S. Supreme Court’s landmark ruling in June, Bostock v. Clayton County, which cemented protections for LGBTQ workers under Title VII of the Civil Rights Act of 1964, the law that prohibits workplace discrimination based on race, sex, religion or national origin. The Supreme Court determined that “sex” under Title VII should be interpreted to include LGBTQ people, when they face discrimination based on their sexual orientation or gender identity. Legal experts and some of the justices themselves suggested the ruling could have consequences for other laws that apply to sex discrimination, including Title IX. The Department of Education’s Office for Civil Rights, or OCR, overseen by former education secretary Betsy DeVos, has since signaled that it would investigate some Title IX complaints that allege discrimination based on homosexuality or transgender identity, but that some exceptions remain for Title IX enforcement. For example, the department said in previous letters that it is not discrimination against transgender students for a school to maintain separate sports teams based on biological sex.

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