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Biden admin: Discrimination against LGBTQ kids illegal under Title IX

In contrast, Trump DOJ sided with anti-trans laws

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The Biden administration made official on Wednesday its position that discrimination against LGBTQ kids in schools is illegal under federal law at a time when states have enacted measures prohibiting transgender kids from playing in school sports or obtaining transition-related health care.

The Education Department, in a notice of interpretation signed by Secretary of Education Miguel Cardona, declared it would enforce Title IX of the Education Amendments of 1972, which bars discrimination on the basis of sex in schools, to prohibit discrimination both on the basis of sexual orientation and gender identity.

“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” Cardona said in a statement. “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. Today, the Department makes clear that all students — including LGBTQ+ students — deserve the opportunity to learn and thrive in schools that are free from discrimination.”

In contrast, the Trump administration had interpreted Title IX to exclude cases of anti-transgender discrimination in schools. In fact, the Justice Department under former President Trump filed a legal brief in defense of an Idaho law against transgender kids in sports in ongoing litigation against the statute.

Just this year, a number of states have enacted similar laws. Florida Gov. Ron DeSantis, a potential 2024 presidential candidate, said upon signing into law a measure banning transgender kids, that status would go “based on biology.” Arkansas has enacted a law over the veto of its governor making criminal the providing of transition-related care to transgender kids.

The notice of interpretation is consistent with the executive order President Biden signed on his first day in office instructing federal agencies to prohibit anti-LGBTQ discrimination to the furthest extent possible in the wake of the U.S. Supreme Court’s decision in Bostock v. Clayton County. In his executive order, Biden specifically spelled out students should be able to go school without being  “denied access to the restroom, the locker room or school sports.”

It wasn’t immediately clear whether the Biden administration would follow up on the memo with legal action against states with anti-transgender laws.

UPDATE: An Education Department spokesperson late Thursday responded to a Washington Blade inquiry on whether the Title IX memo would lead to legal action against states, saying the Office of Civil Rights would have discretion in the complaints it accept.

“All schools that receive federal financial assistance are required to comply with Title IX and its implementing regulations,” the spokesperson said. “The Notice of Interpretation makes clear that Title IX prohibits discrimination based on sexual orientation or gender identity, and OCR encourages any student who believes they have experienced discrimination to file a complaint with their Title IX coordinator. OCR will apply this interpretation to the facts of each individual case and draw conclusions only after completing an investigation. Our analysis will be informed by the legal standards and principles OCR applies in all cases and by relevant decisions of federal courts.”

The White House has consistently referred questions on whether the Biden administration would take up legal action against states enacting anti-transgender laws to the Justice Department, which hasn’t responded to multiple requests for comment.

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More Americans personally know someone who’s transgender, non-binary: survey

42% know a trans person, 26% know someone using gender-neutral pronouns

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More Americans personally know a transgender person or someone who goes by gender-neutral pronouns, according to new data from the non-partisan Pew Research Center.

A survey found 42 percent of Americans know someone who’s transgender, who is up from 37 percent who said so in 2017. Although most Americans, 57 percent, still say they don’t know anyone who’s transgender, that’s down from 63 percent five years ago.

Similarly, 26 percent of Americans say they know someone who uses non-binary gender pronouns compared to the 18 percent in 2018 who said they knew someone uses pronouns such as “they” as opposed to “he” or “she.”

At the same time, comfort levels with using gender-neutral pronouns – as well as their opinions on whether someone’s gender can differ from the sex they were assigned at birth – has remained about the same. Half of Americans say they would be either very or somewhat comfortable using a gender-neutral pronoun to refer to someone if asked to do so, compared to 48 percent who say they would not be comfortable. The numbers, according to Pew Research, are basically unchanged since 2018.

The survey found profound differences by age, party, and education in knowing a transgender person or someone who goes by gender-neutral pronouns, although in both parties growing shares of Americans report knowing a person who’s transgender.

For Americans under age 30, some 53 percent say they know a transgender person, which is up from 44 percent in 2017. In the same age group, 46 percent of younger U.S. adults know someone who goes by gender-neutral pronouns, compared to 32 percent in 2018.

The Pew Research Center conducted the survey of 10,606 U.S. adults between June 14 and June 17. The survey is weighted to reflect the U.S. adult population in terms of gender, race, ethnicity, partisan affiliation, education, and other categories, according to Pew Research.

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Louisiana lawmakers fail to overturn Edwards veto of Trans sports bill

Edwards further said that the bill was “mean” because it targets “the most emotionally fragile children in the state of Louisiana.”

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Louisiana Democratic Governor John Bel Edwards (Photo Credit: Official state portrait)

BATON ROUGE – Louisiana lawmakers failed to override Gov. John Bel Edwards’ (D) veto last month of a bill that would have barred trans girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools.

The measure, Senate Bill 156 authored by Sen. Beth Mizell titled the ‘the Fairness in Women’s Sports Act,’ in the Governor’s eyes, “was a solution in search of a problem that simply does not exist in Louisiana,” Edwards said in his veto statement;

“As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue. 

The Republican majority state House chamber failed to override the Governor’s veto after voting 68-30 to override it, according to the state legislature’s website.

The vote narrowly missed the 70-vote threshold needed in the lower chamber to override the veto.

Two-thirds of both the House and Senate must vote to override a governor’s veto, according to the local Baton Rouge newspaper The Advocate.

The Governor reacted to the news that his veto withstood Republican efforts to overturn it in a press conference Wednesday.

Edwards noted that in his view he had “rejected a play” that had no place in Louisiana. 

“I would rather the headlines going out from today be that Louisiana did what was right and best. We rejected a play out of a national playbook that just had no place in Louisiana. That bill wasn’t crafted for our state, I mean go read it and look at the arguments that were made. None of that applies here,” Edwards said.

He further said that the bill was “mean” because it targets “the most emotionally fragile children in the state of Louisiana.” 

“We have to be better than that,” Edwards said. “We have to be better than that.” 

 

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Federal court blocks West Virginia Law banning Trans youth sports

“It hurt that the State of West Virginia would try to block me from pursuing my dreams. I just want to play.”

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Becky Pepper-Jackson (Photo credit: ACLU/Raymond Thompson)


CHARLESTON, W.Va. — A judge of the United States District Court, Southern District of West Virginia ruled Wednesday that 11-year-old Becky Pepper-Jackson must be allowed to try out for the girls’ cross-country and track teams at her school, blocking West Virginia from enforcing a law that bans transgender girls and women from participating in school sports. 

The ruling came in the lawsuit challenging the ban filed by Lambda Legal, the American Civil Liberties Union, the ACLU of West Virginia, and Cooley LLP.

“I am excited to know that I will be able to try out for the girls’ cross-country team and follow in the running shoes of my family,” said Becky Pepper-Jackson, the plaintiff in the lawsuit. “It hurt that the State of West Virginia would try to block me from pursuing my dreams. I just want to play.”

West Virginia Gov. Jim Justice signed H.B. 3293 into law at the end of April. It was one of hundreds of anti-LGBTQ bills pushed in state legislatures across the country in 2021. During legislative debate, it was not endorsed by any mainstream sporting or health organizations. A similar law in Idaho was blocked by a federal court in 2020, and a federal court in Connecticut recently dismissed a challenge to policies that allow all girls, including girls who are transgender, to participate on girls’ sports teams. Legal challenges are underway against similar laws passed in other states.

The Supreme Court recently refused to disturb Gavin Grimm’s victory at the U.S. Court of Appeals for the Fourth Circuit, where he prevailed in challenging his school’s anti-transgender discrimination against him. This decision — which is binding precedent in West Virginia federal court — said that federal law protects transgender students from discrimination in schools.

“This is great news for Becky, and while our work is not done yet, today’s ruling jibes with similar rulings in other courts across the country,” said Avatara Smith-Carrington, Tyron Garner Memorial Law Fellow, Lambda Legal. “It is our hope that courts recognize and address discrimination when they see it, and nowhere is it more visible than in these stark attacks against trans youth.”

“Becky — like all students — should have the opportunity to try out for a sports team and play with her peers,” said Josh Block, senior staff attorney with the ACLU LGBTQ & HIV Project. “We hope this also sends a message to other states to stop demonizing trans kids to score political points and to let these kids live their lives in peace.” 

“We’ve said all along this cruel legislation would not survive a legal challenge, and we’re encouraged by the court’s decision today,” said ACLU-WV Legal Director Loree Stark. “We hope trans kids throughout West Virginia who felt attacked and wronged by the passage of this legislation are feeling empowered by today’s news.”

“We are extremely gratified — for Becky, and for all trans youth — at the court’s recognition that the law and the facts clearly support treating people who are transgender fairly and equally. Discrimination has no place in schools or anywhere else,” said Kathleen Hartnett of Cooley LLP.

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