Department of Education Publishes Memorandum Misconstruing Supreme Court’s Bostock Decision

Viet Tran, HRC — The Human Rights Campaign responded to the Department of Education’s Office of Civil Rights publication of a memorandum misconstruing the U.S. Supreme Court’s decision in Bostock v. Clayton County, prohibiting discrimination against LGBTQ people, and its application to Title IX of the Education Amendments of 1972.

In her final moments at the Department of Education, Secretary Betsy DeVos prioritized punishing LGBTQ students. The memorandum refusing to apply Bostock to federal education law is unconscionable and legally flawed. Over the last four years, Secretary DeVos has repeatedly attacked the LGBTQ community — especially transgender students — leaving an egregious record of recruiting anti-LGBTQ extremists, making it difficult for survivors of sexual assault to receive justice, and rescinding guidance to schools on their obligations to transgender students. The Biden-Harris administration and Secretary Designate Miguel Cardona must urgently rescind this discriminatory guidance.

Alphonso David, President, Human Rights Campaign

The new guidance categorically denies that Bostock applies to Title IX despite the clear words of the majority opinion that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Title IX prohibits sex discrimination in federally funded educational programs. In addition, numerous federal circuit courts — including the 6th Circuit, the 7th Circuit, the 4th Circuit, and the 11th Circuit — have held that transgender students are protected from discrimination under Title IX.

In October 2020, the Education Department named anti-LGBTQ extremist Sarah Perry as the co-chair of the new Diversity and Inclusion Council. Sarah Perry has a long history of statements and activism against transgender people as a former employee of the Family Research Council, a group that is outspoken in their opposition to LGBTQ rights and protections.

Under the direction of DeVos and then-Attorney General Jeff Sessions, within days of taking office, the U.S. Departments of Education and Justice revoked the Obama Administration’s guidance detailing schools’ obligations to transgender students under Title IX of the Education Amendments of 1972.

In September 2017, DeVos withdrew vital Title IX guidance related to schools’ obligations to address sexual harassment, including sexual violence. LGBTQ people disproportionately experience sexual violence.