Notice2026-00150
Notification of Rescission of the 2022 Interpretation of Section 188 of the Workforce Innovation and Opportunity Act
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Published
January 8, 2026
Effective
January 8, 2026
Issuing agencies
Labor Department
Abstract
This notice rescinds guidance that defines the term "sex" for purposes of the Department of Labor's anti-discrimination provisions of its workforce funding and development programs. Specifically, the guidance that is the subject of this notice construed the term "because of . . . sex" to include transgender status and gender identity, based on the Supreme Court case Bostock v. Clayton County. The Department of Labor now rescinds this guidance because later court cases found that the term "sex", as it is used in the context of education funding in Title IX, does not include transgender status or gender identity, and that the holding in Bostock v. Clayton County, which was about Title VII, does not apply to Title IX. This rule is effective immediately and rescinds the former guidance in its entirety.
Full Text
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<title>Federal Register, Volume 91 Issue 5 (Thursday, January 8, 2026)</title>
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[Federal Register Volume 91, Number 5 (Thursday, January 8, 2026)]
[Notices]
[Pages 726-727]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00150]
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DEPARTMENT OF LABOR
Office of the Secretary
Notification of Rescission of the 2022 Interpretation of Section
188 of the Workforce Innovation and Opportunity Act
AGENCY: Office of the Secretary, Labor.
ACTION: Notification of rescission.
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SUMMARY: This notice rescinds guidance that defines the term ``sex''
for purposes of the Department of Labor's anti-discrimination
provisions of its workforce funding and development programs.
Specifically, the guidance that is the subject of this notice construed
the term ``because of . . . sex'' to include transgender status and
gender identity, based on the Supreme Court case Bostock v. Clayton
County. The Department of Labor now rescinds this guidance because
later court cases found that the term ``sex'', as it is used in the
context of education funding in Title IX, does not include transgender
status or gender identity, and that the holding in Bostock v. Clayton
County, which was about Title VII, does not apply to Title IX. This
rule is effective immediately and rescinds the former guidance in its
entirety.
DATES: This rescission is effective January 8, 2026.
FOR FURTHER INFORMATION CONTACT: Naomi Barry-P[eacute]rez, Director,
Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue
NW, Room N-4123, Washington, DC 20210.
SUPPLEMENTARY INFORMATION: Section 188(a)(1) of the Workforce
Innovation and Opportunity Act (WIOA) WIOA states that programs funded
or otherwise financially assisted in whole or in part under WIOA are
federal assistance programs subject to the prohibition against
discrimination, inter alia, ``on the basis of sex under title IX of the
Education Amendments of 1972.'' \1\ Separately, WIOA also provides at
section 188(a)(2) that no individual ``shall be excluded from
participation in, denied the benefits of, subjected to discrimination
under, or denied employment in the administration of or in connection
with, any such program or activity because of . . . sex (except as
otherwise permitted under title IX of the Education Amendments of
1972)[.]'' \2\ Finally, section 188(e) commands that the Department of
Labor (DOL or the Department) ``shall adopt standards for determining
discrimination . . . that are consistent with the Acts referred to in
subsection (a)(1).'' For sex discrimination, this means the standards
under Title IX.
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\1\ 29 U.S.C. 3248(a)(1).
\2\ 29 U.S.C. 3248(a)(2).
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On April 7, 2022, the Department published a ``Notification of
interpretation'' construing section 188(a)(2) to encompass
discrimination based on sexual orientation and gender identity.\3\ The
notice announced that the Department's Civil Rights Center would
process complaints, conduct investigations, and carry out compliance
reviews under section 188 on that basis. In reaching this
interpretation, the Department relied principally on the Supreme
Court's decision in Bostock v. Clayton County, 590 U.S. 644 (2020),
which held that Title VII's prohibition on discrimination ``because of
sex'' necessarily encompasses sexual orientation and gender identity,
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.\4\ DOL
reasoned that, because section 188 of WIOA expressly incorporates Title
IX's prohibition on sex discrimination, which is governed by Bostock's
reasoning, section 188 must also prohibit discrimination based on
sexual orientation and gender identity.\5\
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\3\ 87 FR 20321 (Apr. 7, 2022).
\4\ Id. at 20321-22.
\5\ 87 FR 20322.
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Since that time, however, additional courts have considered the
issue and determined that Bostock's reasoning does not extend to Title
IX.
Notably, on December 30, 2022, the Eleventh Circuit in Adams by &
through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir.
2022) subjected the term ``sex'' as used in Title IX to a thorough
statutory analysis. After clarifying that Bostock did not resolve how
the term ``sex'' is defined under Title IX in light of Title IX's
statutory and regulatory carveouts, the Eleventh Circuit found that the
ordinary meaning of the term ``sex'' as of 1972 (when Title IX was
enacted) was ``biological sex,'' and reversed a judgment in favor of a
transgender student regarding a high school's bathroom policy. In
particular, the Eleventh Circuit explained that Title IX should be
interpreted to give full effect to the statute's exceptions, which
include ``explicitly permit[ting] differentiating between the sexes in
certain instances, including school bathrooms, locker rooms, and
showers, under various carve-outs.'' Adams, 57 F.4th at 814. The
Eleventh Circuit concluded that, based on these carveouts, as well as
the dictionary definition of the term ``sex'' in existence at the time
that Title IX was enacted, that extending the term ``sex'' under Title
IX to gender identity ``cannot comport with the plain meaning of `sex'
at the time of Title IX's enactment and the purpose of Title IX and its
implementing regulations, as derived from their text.'' Id.
Then, in April 2024, the Department of Education promulgated a
comprehensive Title IX rule 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.'' \6\ The Department of
Education relied principally on extending Bostock to Title IX for this
rulemaking.\7\
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\6\ 89 FR 33886 (Apr. 29, 2024).
\7\ Id. at 33806-07.
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That rule was promptly challenged. Every court presented with a
challenge indicated that the rule was unlawful
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and enjoined it.\8\ These courts found that the Department of
Education's rule exceeded statutory authority because Title IX's text,
history, and structure establish that ``sex'' refers to the biological
distinction between male and female.\9\ They also universally rejected
the Federal government's position that Bostock's reasoning applies to
Title IX. As Sixth Circuit Chief Judge Sutton explained when affirming
the preliminary injunction granted by the Eastern District of Kentucky,
``Title VII's definition of sex discrimination under Bostock simply
does not mean the same thing for other anti-discrimination mandates,
whether under the Equal Protection Clause, Title VI, or Title IX.''
\10\ Judge Sutton reasoned that Title VII and Title IX have
``materially different language'' and ``serve different goals and have
distinct defenses.'' Judge Sutton also observed that ``Congress enacted
Title IX as an exercise of its Spending Clause Power, which means that
Congress must speak with a clear voice before it imposes new mandates
on the states. The same is not true of Title VII.'' Based on these
findings, Judge Sutton rejected the notion that ``principles announced
in the Title VII context automatically apply in the Title IX context''
and concluded that, based on this statutory analysis, that courts
should be ``skeptical of attempts to export Title VII's expansive
meaning of sex discrimination to other settings.'' \11\
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\8\ Alabama v. U.S. Sec. of Educ., No. 24-12444, 2024 WL 3981994
(11th Cir. Aug. 22, 2024); Tennessee v. Cardona, No. 24-5588, 2024
WL 3453880, at *1 (6th Cir. July 17, 2024); Oklahoma v. Cardona, 743
F.Supp.3d 1314 (W.D. Okla. July 31, 2024); Arkansas v. Dept. of
Educ., 742 F.Supp.3d 919 (E.D. Mo. July 24, 2024); Texas v. United
States, 740 F.Supp.3d 537 (N.D. Tex. July 11, 2024); Kansas v. Dept
of Educ., 739 F.Supp.3d 902 (D. Kan. July 2, 2024); Louisiana v.
Dept. of Educ., 737 F.Supp.3d 377 (W.D. La. 2024).
\9\ See, e.g., Texas, 743 F. Supp. at 872-74.
\10\ Tennessee, 2024 WL 3453880, at *2-3 (internal citations and
quotation marks omitted).
\11\ Id.
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The federal government sought emergency relief from the Supreme
Court to stay injunctions issued by the district courts in Louisiana
and Kentucky. In denying relief, ``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.'' \12\ The Eastern District of
Kentucky thereafter vacated the Department of Education's Title IX
rule.\13\
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\12\ Dep't of Educ. v. Louisiana, 603 U.S. 866, 867 (2024). Four
Justices would have narrowed the injunctions to exclude other parts
of the rule. Louisiana, 603 U.S. at 869 (Sotomayer, J., dissenting
in part from the application for stays).
\13\ Tennessee v. Cardona, 762 F. Supp. 3d 615 (E.D. Ky. 2025).
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Taken together, 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 Department further recognizes that its regulations implementing
WIOA section 188's prohibition against sex discrimination currently
state that ``[t]he term sex includes, but is not limited to, pregnancy,
childbirth, and related medical conditions, transgender status, and
gender identity.'' \14\ The Department will consider rulemaking and
related subregulatory guidance to ensure its regulations and
enforcement practices are aligned with recent judicial developments.
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\14\ 29 CFR 38.7(a).
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Authority: WIOA Section 188, 29 U.S.C. 3248; Secretary's Order 04-
2000 (November 7, 2000).
Signed in Washington, DC, January 5, 2026.
Lori Chavez-DeRemer,
Secretary of Labor.
[FR Doc. 2026-00150 Filed 1-7-26; 8:45 am]
BILLING CODE 4510-HL-P
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</html>Indexed from Federal Register on January 8, 2026.
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