US seeks comment on Title IX protections for LGBTQ citizens

The Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — has marked the publication of the U.S. Department of Education’s Title IX Notice of Proposed Rulemaking. The proposed regulation, which will add sexual orientation and gender identity as enumerated protected characteristics within the Title IX regulation, is now open for public comment for 60 days. The Department is inviting comments from members of the general public and offers a helpful tip sheet on how to compose comments that will have an impact on the rulemaking process.

“All students -- no matter their background, sexual orientation, or gender identity -- deserve to feel safe and welcomed in schools. The proposed rule to include clear protections based on sexual orientation and gender identity within the Title IX regulation will do just that,” said Sarah Warbelow, HRC Legal Director. “This is not a ceremonial step; the voice of the people truly matters here, and we strongly encourage affected people – students, parents, and educators – to submit an official comment about how the proposed rule would positively impact students’ experiences in school. As we await further the Department’s promised additional rule on athletics provisions, which we expect to make clear that transgender youth should be included in these protections, individuals and groups can make their voices heard in defense of LGBTQ+ youth right now.”

The Title IX proposal will help the Biden administration to combat laws like the ‘Don’t Say Gay or Trans’ bills passed in Florida and Alabama that invite harassment of LGBTQ+ youth, and the bathroom bills in Alabama and Oklahoma that prevent transgender students from using facilities matching their gender identity. Polling shows that the public supports nondiscrimination protections for LGBTQ+ people, and this rule change is about making the will of the people a reality.

The proposed rule would reverse May 2020 changes to Title IX that limited federally funded educational institutions’ obligation to address sexual harassment and assault. The updated rule would also reinforce protections on the basis of sexual orientation and gender identity. Even prior to final rules on implementation of Title IX, the law provides protections to LGBTQ+ students in federally funded educational programs. Numerous federal courts have found that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity, including in Title IX. This includes decisions from federal courts that it is a violation of Title IX to exclude transgender students from restrooms, locker rooms, and sex-separated programs and activities, including athletics, consistent with their gender identity.

Under the Trump administration, the Department of Education instituted a series of controversial and discriminatory regulatory and guidance changes to the implementation of Title IX – the federal civil rights law that protects students from discrimination in federally-funded educational activities and programs – dismantling long-standing protections and opening the door to sex-based discrimination against LGBTQ+ students.

  • In 2017, the Departments of Education and Justice rescinded guidance to schools about their obligations to transgender students.
  • As part of the regulatory changes, requirements that federally-funded schools report sexual assault were relaxed and dismantled – creating more hurdles for survivors of sexual assault to seek justice, while giving more rights to alleged perpetrators of sexual violence.
  • The changes further threatened LGBTQ+ students and women, who face disproportionately high rates of sex-based discrimination and stigma that can make it more difficult for LGBTQ survivors to report sexual assault and harassment.
  • Studies suggest that nearly half of bisexual women have been raped and half of transgender people will experience sexual violence at some point in their lifetimes. According to the Youth Risk Behavior Survey, a national survey of high school students, lesbian and bisexual women and gay and bisexual men experienced higher rates of sexual assault than their straight counterparts. In addition, a 2015 study by the Association of American Universities found that 60 percent of gay and lesbian students and nearly 70 percent of bisexual students report being sexually harassed on campus.

In March 2021, President Biden issued Executive Order 14021 to begin the process of undoing the Trump administration’s harmful actions undermining Title IX and protections for LGBTQ+ students. The executive order directed the federal government to ensure federally funded facilities and educational environments are free from sexual harassment, sexual violence, and discrimination on the basis of sex, sexual orientation, and gender identity.

Anyone who wishes to comment on the Title IX NPRM can do so at this link, now through Sept. 12.