DOJ tells agencies gay and transgender students are protected by anti-discrimination laws

The Department of Justice (DOJ) has told federal agencies that gay and transgender students are protected from discrimination under civil rights laws, reversing Trump administration guidance that limited the impact of a landmark Supreme Court decision last year extending employment discrimination protections to LGBT workers.

In an undated memo to federal agencies, Pamela Karlan, the head of the DOJ’s civil rights division, said that based on the Supreme Court’s decision in Bostock v. Clayton County, the 1972 education civil rights law known as Title IX should be read as covering gay and transgender students. 

“After considering the text of Title IX, Supreme Court caselaw, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation,” Karlan wrote in the memo. 

A Justice Department spokeswoman said the memo was issued March 26.

Title IX prohibits discrimination “on the basis of sex” in educational institutions that receive federal funding. 

The court ruled 6-3 last year that the language in Title VII of the 1964 Civil Rights Act prohibiting employment discrimination based on “sex” covered workers’ gender identity and sexual orientation. Karlan, who was named principal deputy assistant attorney general by the Biden administration in February, argued the case on behalf of Gerald Bostock, who was fired from his job with Clayton County after discussing his involvement with a gay softball league. 

The decision was hailed by LGBT advocates who saw it as a watershed moment for civil rights, predicting that the majority’s interpretation of “sex” would extend similar protections in areas like housing, education and health care. 

But just days before President Biden was inaugurated Jan. 20, the Trump administration’s DOJ issued a memo saying it would not be applying the standard in the Bostock decision to other areas.

Biden signed an executive order on inauguration day pledging to “prevent and combat discrimination on the basis of gender identity or sexual orientation” and two days later the DOJ rescinded the Trump administration’s memo.