Department of Education Redefines ‘Sex’ in Title IX to Include ‘Sexual Orientation’ and ‘Gender Identity’

The Department of Education’s Office for Civil Rights (DOE, OCR) announced that it was interpreting “sex discrimination” in Title IX to include “sexual orientation” and “gender identity.” The decision by the DOE is a serious blow to students’ privacy and safety; to parental rights and freedom of speech in education; and to women’s participation in single-sex sports and activities.

Ironically, the announcement to undermine Title IX comes just a week before the legislation’s 49th anniversary, as the act to protect women from being discriminated against in education went into effect June 23, 1972.

The Notice of Interpretation came less than a week after the OCR held hearings on redefining “sex” – being male or female – to include these subjective, ill-defined constructs based on a person’s sexual attractions, thoughts, behavior and feelings.

The DOE seems to have had its Notice of Interpretation ready regardless of the outcome of the hearings, where hundreds of people, possibly even thousands, voiced their opposition to this move. The comments are not posted online, and the DOE has not responded to The Daily Citizen’s request to see them. It hardly seems possible that the OCR even had time to review all the comments from concerned individuals.

In a press release about the move, Meridian Baldacci, policy and communications strategist at Family Policy Alliance, said the DOE’s actions will take away opportunities and scholarships from girls in sports, as boys who identify as girls will be allowed to compete on girls teams.

She also wrote, “Preserving female sports is not the only reason Title IX’s sex-based distinction matters. Title IX’s provisions also affect the ability of schools to provide single-sex locker rooms, changing rooms, and other private spaces. Under the Department’s new interpretation, schools will be expected to allow males into female-only spaces, and vice versa. This is an affront to children’s privacy. The Department of Education should not have the power to determine when a child is seen unclothed by a member of the opposite sex (her emphasis).”

The notice, issued June 16, says:

The U.S. Department of Education’s Office for Civil Rights today issued a Notice of Interpretation explaining that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance.

The OCR says the decision was based on the egregious ruling by the United States Supreme Court “in Bostock v. Clayton County, issued one year ago this week, in which the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex.”

As we reported in The Daily Citizen, other federal agencies are citing this same decision, which was not intended to affect schools and students. The DOE guidance also follows two White House executive orders.

Baldacci stated, “The Department of Education’s decision is bad policy, poor procedure, and a misapplication of the Court’s decision in Bostock.”

“The Department does not and should not have the power to change the law. Congress has not defined ‘sex’ in Title IX to mean sexual orientation and gender identity. In fact, Congress has repeatedly declined to do so by rejecting the federal Equality Act. And, the Supreme Court was explicit that its own redefinition of sex in Title VII did not apply to other laws,” she added.

On his first day in office, President Biden signed an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which also cited Bostock. It required every federal department and agency to review all policies and regulations to “prohibit discrimination on the basis of gender identity or sexual orientation.”

Another White House executive order from March 8, an “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity,” directed the DOE to redefine “sex discrimination” to include sexual orientation and gender identity.

The federal DOE does not control local schools, which are governed by state legislatures, which get their authority to set up educational systems through their state constitution and state law. States set educational policy through state boards or departments of education, which then delegate authority to local school boards.

So the DOE can’t force states and local school boards to follow this redefinition of Title IX – but it can make things difficult for states and local school districts by withholding funds from schools that don’t follow this policy. The notice states, “Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”

In addition, along with the Department of Justice (DOJ), it can harass states and local schools by pursuing civil rights discrimination lawsuits against those that don’t redefine “sex discrimination” to include homosexuality and transgenderism.

In 2011, for example, the DOE and DOJ pursued action against the Arcadia Unified School District, in California. A seventh-grade transgender-identified student, born female but living as a boy, complained that the district did not let her use male restrooms and locker rooms and did not allow her to bunk with boys in a cabin at an overnight camp.

The two federal agencies finally reached an agreement with Arcadia Unified in 2013 that the student “will be treated like other male students while attending school in the district.” It’s likely that the current administration will pursue similar cases across the country, in an effort to force schools to comply with its reinterpretation of “sex.”

Baldacci said she hopes states will take action against this destructive policy. She wrote, “When the Obama Administration issued similar guidance in 2016, 13 states sued and ultimately the guidance was enjoined [prohibited by a judicial order]. Today, for the sake of women and girls, we hope that history repeats itself (her emphasis).”