This article is part of a series in which the Teaching Center focuses on legal and political developments affecting higher education ... and university teaching more specifically. Aiming to encourage informed dialogue by describing and explaining the issues that underpin significant events and trends, these pieces will support an enhanced classroom climate, one in which salient concerns do not remain invisible simply because they can be difficult to discuss.

By J. D. WRIGHT

LGBTQ allies and advocates have sought — and often secured — rights for people facing discrimination because of their sexual orientations or gender identities. Recent developments in the higher-education context, on both federal and state levels, can prompt us to re-examine how we work with LGBTQ students in class.

The federal context

Title IX of the Education Amendments of 1972, in very brief and simple phrasing, prohibits discrimination “on the basis of sex” in educational programs that receive federal funds. A quandary emerges, however, when we delve into possible ambiguities in the statute’s use of the word “sex.” Is it a biologically (or even genetically) based set of two strictly binary categories? Or is “sex” a broader term encompassing an array of sexual orientations and gender identities that are related to biological sex categories although not perfectly aligned with them?

If the term is ambiguous, then what was the intent of Congress in enacting Title IX in 1972? Did it consider or answer those questions? And, if not, does the Biden administration’s Department of Education have the authority to resolve any ambiguity through its regulatory power?

Administrative rules have clarified that discrimination “on the basis of sex” includes failures to prevent and remedy cases of sexual harassment based on a person’s non-conformance with sex and gender stereotypes. And the 2020 Supreme Court decision in Bostock v. Clayton County held that, in the context of another anti-discrimination statute, “Sex plays a necessary and undisguisable role” in discriminatory actions against a person’s sexual orientation or gender identity, such that those actions are unambiguously made “because of” sex within the statute’s terms, thereby running afoul of its prohibitions.

Yet the precise question of whether Title IX’s prohibition against discrimination “on the basis of sex” extends to discriminatory acts based on gender identity and sexual orientation, like denying someone a teaching fellowship on the basis of the person being trans, has not been definitively resolved.

Wading into this legal context, President Biden’s Department of Education earlier this year proposed regulations that, among other things, declare that Title IX’s reach encompasses those forms of discrimination. (The regulations decline to address the question of transgender students’ participation in college athletic programs.) This apparent LGBTQ victory, however, will almost certainly face a judicial challenge, and two considerations — even beyond the significant change in the Supreme Court’s composition since Bostock in 2020 — might provide a court that is so inclined with an opportunity to strike down the proposed regulations, arguably without disturbing precedent.

First, in Bostock, the discrimination victims conceded for the sake of argument that the word “sex,” within the meaning of the statute, was limited to biological distinctions. As a result, the court did not decide the meaning of the term “sex.” Instead, it focused on the narrower question of whether the discriminatory conduct was “because of” sex within the statute’s meaning; i.e., that “but for” the plaintiffs’ sex, the conduct would not have occurred. The different language of Title IX (“on the basis of” sex) gives opponents of the proposed regulations cover to argue for a different result.

Moreover, 2022 marked the advent of the important intervening decision in West Virginia v. EPA, a case that turned on the “major questions doctrine.” Decided in the context of an agency’s rulemaking authority — a different legal setting than that at issue in Bostock but one applicable to the proposed Title IX regulations — West Virginia v. EPA struck down a sweeping set of environmental regulations with “vast ‘economic and political significance’” on the grounds that the EPA could not point to a “clear congressional authorization” granting it the authority to make such major changes to the underlying statute.

Regulation opponents would likely argue that the Biden administration improperly and fundamentally sought to alter or expand, rather than merely interpret, the terms of Title IX, thus arrogating legislative powers to the Department of Education.

These considerations could persuade Justice Neil Gorsuch and/or Chief Justice John Roberts — both of whom were part of the Bostock majority — to support a different result in a case challenging the proposed Title IX regulations. Moreover, the fact that Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg since the decision in Bostock gives further hope to opponents of the Biden administration’s proposal.

Pennsylvania Anti-Discrimination Law

While federal law sets a “floor” representing the minimum protections that must be afforded to a particular group in a certain setting, those federal mandates ordinarily do not establish a “ceiling” beyond which other jurisdictions may not grant further protections. In other words, even though federal law might not ban discrimination on the basis of sexual orientation or gender identity, state laws still can. That could be the case in Pennsylvania.

Two state statutes explicitly prohibit sex discrimination, the Pennsylvania Human Relations Act (PHRA) and, in the higher-education context, the Pennsylvania Fair Educational Opportunities Act. Charged with the task of enforcing these statutes and granted broad authority to implement them, the Pennsylvania Human Relations Commission recently issued regulations defining “sex” to include gender identity and sexual orientation.

Although the Democrat-controlled House of Representatives enacted a bill that would write these definitions into the PHRA itself, action on a similar piece of legislation has stalled in the GOP-led Senate, where Bill 124 is unlikely to advance to Gov. Josh Shapiro’s desk. That outcome could provide comfort to opponents of the Human Relations Commission regulations.

Depending upon the resolution of the federal issue, anti-PHRC forces might use Chmill v. Pittsburgh to argue that the Human Relations Act must be construed in light of federal interpretations of anti-discrimination law and that the General Assembly’s refusal to adopt the commission’s definition signaled a view that the commission had exceeded its authority in issuing the regulations. However, regulation opponents could readily fail insofar as higher education is concerned — that case arose in an employment context and neither it nor the General Assembly’s likely action on Senate Bill 124 implicates the Fair Educational Opportunities Act.

Supporting LGBTQ students in the classroom

Current political configurations in Pennsylvania (and even at the national level) do not betoken a climate favorable to legal measures that are affirmatively opposed to LGBTQ-student interests. Thus, regardless of how the Title IX and state-law controversies are resolved, nothing in our legal landscape is likely to prevent Pitt instructors from offering their full support to LGBTQ students.

You have a number of starting points available for learning how to be an effective ally:

• The Teaching Center has compiled an impressive list of resources that you can consult in determining the best ways for you to support your students.

• Educate yourself about the meanings of terms commonly used in dialogue about LGBTQ issues with this glossary.

• Pitt’s University Library System offers a full LibGuide for accessing materials in your discipline that are relevant to LGBTQ issues and communities.

• The Pride Syllabus includes content, activities and reflection opportunities that might be helpful as you plan a course for next semester or adapt one this fall.

Here are some additional ideas for showing your support:

• Complete Allies Network training through the Office of Student Affairs, then post program insignia in your spaces to communicate that you are an ally; identify yourself as such in your course syllabi.

• Revise your syllabi to include suggested statements from the Department of Gender, Sexuality, and Women’s Studies, including statements on student well-being, class climate, gender-inclusive language, and Title IX reporting.

• Provide your students with a direct link from your syllabus or Canvas site to the Office of Student Affairs’ LGBTQIA+ page.

• Register for and attend upcoming Teaching Center workshops on queer praxis and trans-affirming pedagogy.

• Consult the set of resources and practical tips compiled by Brown University’s Harriet W. Sheridan Center for Teaching and Learning.

Conclusion

If you need support addressing LGBTQ or other concerns in the context of your teaching practices, contact the Teaching Center to schedule a consultation. Office of University Counsel provides “advice and counsel to the University of Pittsburgh community” on “legal and policy matters involving or affecting the University” (but not on personal legal issues); contact your school or department leadership if you face a policy-related concern that seems to be more than you can handle, and that team can in turn reach out to University Counsel in an appropriate case.

J.D. Wright, who earned his law degree from William & Mary in Virginia and his Ph.D. from Pitt, is a teaching consultant with the University Center for Teaching and Learning. He can be reached at jd_wright@pitt.edu.