Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—DOL rescinds WIOA guidance construing ‘because of... sex’ in Title IX to include transgender status and gender identity, (Jan 7, 2026)

By Brandi O. Brown, J.D.

The notification contends that courts have held that Bostock does not apply to Title IX.

The Department of Labor will be posting in tomorrow’s Federal Register a notification of rescission of the 2022 interpretation of section 188 of the Workforce Innovation and Opportunity Act, which construed subsection (a)(2) to encompass discrimination based on sexual orientation and gender identity. Section 188 covers programs subject to the prohibition of discrimination on the basis of sex under Title IX.

In reaching this interpretation, the more recent notification explains, DOL relied principally on the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), and on the Fourth Circuit’s decision in Grimm v. Gloucester County School Board, 972 F.3d 586, 616 (4th Cir. 2020), which extended Bostock’s reasoning to Title IX’s prohibition on discrimination “on the basis of sex” in the context of access to school bathrooms.

Does not extend to Title IX. Since that time, the new notification contends, additional courts have considered the issue and determined that Bostock’s reasoning does not extend to Title IX. First, DOL points to the Eleventh Circuit’s decision in Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022), which it argues “subjected the term ‘sex’ as used in Title IX to a thorough statutory analysis” and determined that the “ordinary meaning of the term ‘sex’ as of 1972 (when Title IX was enacted) was ‘biological sex.’” As a result, the Eleventh Circuit reversed a judgment in favor of a transgender student regarding a high school’s bathroom policy.

Successful challenges. Next, it points to challenges made to the Department of Education’s rule, relying on Bostock and “redefining prohibited ‘discrimination on the basis of sex’ to include ‘discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.’” According to DOL, “[e]very court presented with a challenge indicated that the rule was unlawful and enjoined it.”

A Sixth Circuit decision—Tennessee v. Cardona—affirmed a preliminary injunction against the rule and the Supreme Court later denied emergency relief sought by the federal government in Department of Education v. Louisiana, stating that “all Members of the Court … accept[ed] that the plaintiffs were entitled to preliminary injunctive relief as to … the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.”

“Taken together,” the notification concludes, “these decisions do not support reliance on Bostock in cases arising under Title IX because it would extend Title IX beyond its statutory bounds. And because section 188(a)(2) of WIOA expressly incorporates Title IX’s exceptions to sex discrimination, and section 188(e) further states the Department “shall adopt standards for determining [sex] discrimination” that are consistent with Title IX, it necessarily follows that sex discrimination prohibited under section 188(a)(2) should be construed consistently with Title IX not to encompass sexual orientation and gender identity. To interpret section 188(a)(2) otherwise would give it broader coverage than Title IX itself and exceed statutory authority. Accordingly, the Department rescinds the 2022 interpretation.”

The rescission will be effective on the date of publication, which is scheduled for January 8, 2026.

News: FederalRegulations AgencyNews SexDiscrimination Discrimination