Biden Administration Sticks Up For Trans Kids. Because YOU Voted.
Happy Pride Month from the Department of Education, where Betsy DeVos is out, and common fucking decency is in.
Education Secretary Miguel Cardona (PBUH) announced today that the DOE is reversing Trump-era guidance that would withhold funding from schools that allowed trans students to participate on the appropriate athletic teams on the theory that Title IX's prohibition on gender discrimination did not apply to them.
"We just want to double down on our expectations," the secretary told the New York Times. "Students cannot be discriminated against because of their sexual orientation or their gender identity."
Intent on delivering one last kick to trans kids on her way out the door, DeVos dropped her trans-bashing memo on January 8, 2021 — the same day she resigned in disgust over the Capitol Riot. It attempted to reconcile the Department's stance with the Supreme Court holding in Bostock v. Clayton County that gay and trans people are protected under Title VII's ban on discrimination "because of sex." It was totes fine to make trans girls use the boys bathroom, the DOE reasoned, because, ummm, clearly the drafters of the law meant "biological sex" — i.e., chromosomes — when they drafted the law.
But Title IX text is very different from Title VII text in many important respects. Title IX, for example, contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex or for members of each biological sex. Compare 42 U.S.C. §§ 2000e-1, 2000e-2 with 20 U.S.C. §§ 1681(a), 1686. However, Title VII and Title IX both use the term "sex", and it is here Bostock may have salience. Bostock compels us to interpret a statute in accord with the ordinary public meaning of its terms at the time of its enactment. Bostock, 140 S. Ct. at 1738 (citations omitted). And as explained below, specifically in the answer to Question 2, the Department's longstanding construction of the term "sex" in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of "sex" at the time of Title IX's enactment.
Not to put too fine a point on it, but no and also go fuck yourself. If Chief Justice John Roberts and Justice Neil Gorsuch say that a trans woman can't be fired for failing to conform to her employer's gender stereotypes, then a trans girl can't be discriminated against for failing to be the kind of girl school administrators want her to be. (Although, let's not lay any money on Roberts and Gorsuch maintaining any ideological consistency when this case inevitably comes before them.)
The new guidance rejects the circular reasoning employed by DeVos and her flying monkeys, noting that "courts rely on interpretations of Title VII to inform interpretations of Title IX" and there's no substantive difference between barring a trans man from the locker room down at the plant and keeping his younger trans brother off the boys soccer team.
So now the DOE is promising to go to bat for gay and trans kids who are discriminated against by their schools.
Where a complaint meets applicable requirements and standards as just described, OCR [Office for Civil Rights] will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities. This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.
Which puts the Biden administration on a direct collision course with the eleventy red states rushing to make it illegal for trans kids to go to gym class. But that is a fight for another day. Today we will just enjoy the fact that the federal government is finally sticking up for these kids — OUR KIDS, all of them, who deserve our love and protection — who are being used as a human shield by a pack of demons looking for the next wedge political issue.
"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. 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," said Cardona. "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."
God bless. It really does get better.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.