The Biden administration has undone a last minute Trump administration move that disadvantaged LGBTQ students.
Although the U.S. Supreme Court concluded last year in Bostock v. Clayton County that federal prohibition against workplace discrimination on the basis of sex also protected LGBTQ individuals from discrimination on the basis of their sexual orientation or gender identity, the Trump administration issued a memo shortly before Biden’s inauguration insisting that federal authorities would not be applying this standard to educational institutions that receive federal funding, which are covered by similar legislation against discrimination on the basis of “sex.”
Following Biden’s inauguration, the Department of Justice has formally rescinded the Trump era memo leaving LGBTQ students vulnerable to discrimination, and they’ve now issued a new memo formalizing their policy of applying protections to students. Notably, Pamela Karlan, who currently heads the civil rights division at the Department of Justice in the Biden administration, actually represented Gerald Bostock in the Supreme Court case last year that ended with the victory for anti-discrimination advocates. Now, in her new government position, she’s the one who signed the memo formally outlining the extension of the protections that she helped win to students.
As Karlan explained it in the memo:
‘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.’
This step definitely isn’t the only one that the Biden administration has taken to address the fallout from the Trump era. For instance, on a similar note, the Biden team has begun a review of controversial Trump era policies for handling allegations of sexual assault on college campuses. These Trump era policies provided perpetrators with the chance to have their side cross-examine victims, which obviously seriously undercuts the whole idea of victim protection. These proposed cross-examinations wouldn’t even be taking place in an actual courtroom — DeVos simply made potential harsh scrutiny of sexual assault victims a formalized part of policies for college campuses.
