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Colleges can now be punished for mistreating LGBTQ students

The Department of Education released a notice of interpretation Wednesday explaining that attacks on gay or transgender students are covered by sex discrimination law

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Demonstrators protest anti-LGBTQ+ legislation in Montana.

Demonstrators gather on the steps of the Montana Capitol protesting anti-LGBTQ+ legislation in Helena, Mont., on In this March 15, 2021. The Department of Education announced Wednesday, une 16, 2021, that gay and transgender college students are covered by federal anti-discrimination law. 

Thom Bridge, Independent Record via Associated Press

The Department of Education announced Wednesday that gay and transgender college students are covered by federal anti-discrimination law. 

Citing a 2020 Supreme Court decision on workplace harassment, officials stated that Title IX’s prohibition on sex discrimination will be interpreted to ban sexual orientation and gender identity-based discrimination, as well.

“This interpretation will guide the department in processing complaints and conducting investigations,” the new document explains.

The announcement, which will affect almost all colleges and universities that receive federal financial assistance, is not surprising given the administration’s previous statements on sex discrimination.

Within hours of taking office in January, President Joe Biden signed an executive order instructing federal officials to review their department’s approach to sex discrimination.

“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the order said.

However, the Department of Education’s announcement is still significant in light of an ongoing federal lawsuit over the government’s relationship with faith-based schools.

LGBTQ students affiliated with a variety of religious colleges and universities filed the suit in March to challenge the availability of religious exemptions to anti-discrimination law. Schools should not be eligible to receive federal funding if they treat gay and transgender students differently than other members of the campus community, they argued.

“The department must enforce the protections of Title IX at all taxpayer-funded educational institutions, including at those institutions that discriminate and cause harm on the basis of sincerely held religious beliefs,” the class action complaint said.

In a legal filing last week, the Justice Department said it was prepared to defend the religious exemptions to Title IX in court. But it also noted that its discrimination policies were currently under review.

This week’s announcement makes clear that existing religious exemptions will remain in place for now. The Department of Education’s notice includes a footnote explaining that not all schools are held liable to all parts of Title IX.

“Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” the footnote said.

LGBTQ rights groups released statements praising the Biden administration’s decision on Wednesday.

“All students deserve an education and learning environment where they can be themselves and be safe. LGBTQ students are protected against discrimination; it is the law, and there should be no confusion or doubt about it,” said Paul Castillo, an attorney for Lambda Legal.