Lankford Presses DOE on ‘Longstanding’ View That Title IX Includes Gender Identity

By Lauretta Brown | September 27, 2016 | 5:34pm EDT
Sen. James Lankford, R-Oklahoma. (AP Photo/Sue Ogrocki, File)

( – According to the Department of Education (DOE), the interpretation that Title IX applies to “gender identity” and not solely one’s biological sex is a view that goes back to “at least 2010.”

Guidance released in May by the DOE interprets Title IX “to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.”

Title IX was enacted in 1972 and prohibits sex discrimination in education programs receiving federal funding.

At a hearing on Sept. 22, Sen. James Lankford (R-Okla.) questioned Department of Education Principal Deputy Assistant Secretary Amy McIntosh regarding the DOE’s gender identity rule.

He questioned McIntosh, whose full title is the “Principal Deputy Assistant Secretary Delegated the Duties of the Assistant Secretary for the Office of Planning, Evaluation, and Policy Development at the Department of Education.”

“I think it’d be safe to say that many school officials didn’t find the interpretation to be inherent in Title IX just based on the response,” he began.

Lankford then cited an August ruling blocking the guidance from a federal judge in Texas saying that “the federal education law known as Title IX ‘is not ambiguous’ about sex being defined as ‘the biological and anatomical differences between male and female students as determined at their birth.’”

McIntosh replied that the DOE’s Office of Civil Rights “has in their enforcement work interpreted discrimination on the basis of sex to include gender identity.”

“I think as you know, our dear colleague letter that explains this in, you know, in to a general audience, cites a number of legal, case law and legal precedent that is consistent with that interpretation,” she added. “It is true as you point out that a Texas court has recently stayed our work on that interpretation and we respectfully disagree with that decision, but, of course, are complying with that judge’s order while we investigate our legal options. I don’t think the last legal chapter has been written.”

Lankford later returned to the topic asking, “It was the perception of the Department of Education this was nothing new, this was always in the statute, it’d just never been enforced or it had been enforced, it just needed clarification?”

“The interpretation of Title IX on discrimination based on sex includes gender identity is actually a longstanding interpretation of the department backed by case law,” McIntosh replied.

“When you say longstanding, help me to understand how long,” Lankford pressed.

“At least 2010,” McIntosh clarified, “arguably earlier than that but the specific issues around transgender students and bathrooms in schools did increase, we got increasing number of complaints and questions over the last few years.”

“The Office of Civil Rights was engaged in investigating and reaching agreements with states and districts because those complaints seemed to be accelerating as, in general, the world has been paying much more attention to gay and lesbian and transgender rights in the recent years,” she said. “We felt that it was important that we tell a broader audience than just the audience that OCR was getting to one complaint at a time how we were interpreting Title IX.”

Lankford told McIntosh that while it was “entirely reasonable to say it is an expectation that every student is able to be at school in a safe environment for that student,” and “here’s good examples of some schools that have done it,” he added,  “you took the next step and said and here’s how you’re going to do it now and it changed dramatically and redefined a statute from the 1970s in a new way.”

“I would respectfully point out the DCL, the Dear Colleague letter is not binding, does not have the force of law, and it does not specify a single way that states and school districts can stay in compliance with the law,” McIntosh replied.

“I would say that there are a lot of districts that disagree with that and we can agree to disagree,” Lankford concluded.


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