New Jersey, California, Pennsylvania Continue Fight to Protect LGBTQ+ Students

Amicus Briefs:
Louisiana vs. US Dept. of Education  |  Kansas vs. US Dept. of Education

TRENTON – Attorney General Matthew J. Platkin announced that New Jersey, California, and Pennsylvania co-led two amicus briefs on behalf of a multistate coalition in federal appellate courts to further defend Title IX’s protections of all students, including LGBTQ+ students, from gender-based harassment and sex discrimination, and to reverse a preliminary injunction that could affect certain schools in their states.

Attorney General Platkin, the Division on Civil Rights (DCR), and their state partners are seeking to protect the rights of students in schools and colleges nationwide from federal court challenges to the U.S. Department of Education’s Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. The Final Rule explicitly protects LGBTQ+ students from sex discrimination and harassment based on sexual orientation or gender identity and reverses the prior administration’s 2020 Rule that rolled back Title IX’s sexual harassment protections for all students.

The briefs were filed in Louisiana v. U.S. Department of Education in the U.S. Court of Appeals for the Fifth Circuit and in Kansas v. U.S. Department of Education in the U.S. Court of Appeals for the Tenth Circuit.

Louisiana and Kansas sued the U.S. Department of Education in an effort to block implementation of the entire Final Rule, and return to the insufficient 2020 standards, because the Final Rule explicitly protects transgender students, and rectifies the harm caused when the prior administration narrowed the scope of Title IX’s protections. Their narrow interpretation of Title IX is not supported by law or by the U.S. Department of Education’s longstanding policy and practice.

“In a free and fair country, all students should be protected from discrimination based on sexual orientation and gender identity,” said Attorney General Platkin. “All students deserve and are entitled to protection from harassment and harm in school. The science is clear that a hostile educational environment has numerous negative impacts on LGTBQ+ youth, and we will keep fighting for these students, no matter where they go to school.”

“Together with our counterparts in other states, we are committed to protecting the rights of LGBTQ+ students and ensuring that they do not face discrimination in school,” said Sundeep Iyer, Director of the Division on Civil Rights. “Title IX’s protections remain critical, and we will continue working with our state counterparts to defend Title IX and ensure that all students are protected from sex discrimination and harassment.”

The amicus briefs aim to protect the students’ right to equal educational opportunities free from gender-based harassment or sex discrimination in the states seeking to block implementation of the Final Rule.

In the briefs, the amici states share how students would benefit from the full protection offered by the Final Rule under Title IX. Both briefs argue that:

• The Final Rule extends protections to gender-diverse youth, and provides broad, significant benefits to LGBTQ+ students nationwide, without compromising student privacy or safety, and without imposing substantial costs to schools.
• The definition of sex-based harassment as conduct that “is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity” aligns with the text of Title IX and better enables stakeholders to prohibit harassment and redress hostile environments.
• The Final Rule does not violate the Spending Clause of the Constitution. The Final Rule does not require states to create new programs; it merely requires that they refrain from discriminating against students on the basis of sex, and fix any discrimination they may find, in return for accepting federal funding.

In addition, the Kansas brief states that the broad preliminary injunction issued by the district court judge in that case is improper and unfair, as it potentially impacts certain schools in the amici states.

In New Jersey, the Law Against Discrimination (LAD) already protects students from policies or practices that discriminate based on their race, gender, sexual orientation, gender identity, gender expression, or other protected characteristics, whether or not motivated by discriminatory intent. The LAD also requires schools to respond promptly and appropriately to harassment based on any protected characteristic that creates a hostile environment. These protections ensure equal access to educational opportunities for all students, which, in turn, confers broad benefits to students and society.

“As another school year begins, New Jersey families should know that they will always have the protection of my office when it comes to safeguarding their rights to learn in educational environments free of harassment, threats, bias, and intimidation,” said Attorney General Platkin.

Since 2020, New Jersey, California, and Pennsylvania have led litigation against other states’ efforts to force schools to return to weaker Title IX protections. Both amicus briefs were led by Attorney General Platkin, California Attorney General Rob Bonta, and Pennsylvania Attorney General Michelle Henry. They were joined by the Attorneys General of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin (Kansas brief only), and the District of Columbia.

This matter is being handled by Assistant Section Chief Andrew Yang and Deputy Attorneys General Amanda Morejón, Giancarlo Piccinini, and Lauren Van Driesen, under the supervision of Section Chief Jessica Palmer and Assistant Attorney General David Leit, of the Special Litigation Section within the Division of Law’s Affirmative Civil Enforcement Practice Group.

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DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like schools, businesses, hospitals, etc.). DCR enforces the New Jersey Law Against Discrimination (LAD), the New Jersey Family Leave Act, and the Fair Chance in Housing Act (FCHA).

DCR has developed various fact sheets about the LAD’s protections against discrimination based on sexual orientation, gender identity, or expression in housing, employment, and places open to the public. To find out more information, visit www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/.

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