Discrimination Based on Sexual Orientation and Gender Identity

In 2016, the Department of Education released “significant guidance” that required all schools to accommodate transgender students with respect to restrooms, locker rooms, overnight accommodations, athletics, and many others. Although later rescinded due to lack of formal rulemaking, the Department of Education’s guidance stated that discrimination on the basis of sex includes discrimination on the basis of a student’s gender identity.¹

In 2017, the Department of Education rescinded the significant guidance on accommodating transgender students. However, guidance released in 2021 includes the modern interpretation of sex to include sexual orientation and gender identity. In fact, recent court cases have affirmed that sex includes both sexual orientation and transgender identity.

What’s more, on April 6, 2021, the Department of Education’s Office of Civil Rights announced a review of Title IX regulations. The review includes solicitation of public input on the regulations, which could lead to the Department of Education returning to the 2016 guidance with respect to transgender students.

Impact of The Equality Act

Additionally, the proposed Equality Act would include “sexual orientation” and “gender identity” as protected classes within several federal anti-discrimination laws. Because the Equality Act would amend several different federal anti-discrimination laws, each of which having varying coverage requirements (such as employers meeting minimum size requirements, educational institutions receiving federal funding, etc.), the Equality Act may apply to a variety of different religious institutions.