Rescission of the 2022 interpretation of WIOA Section 188; DOL declares that "sex" in § 188 excludes gender identity and transgender status

Rescinds in its entirety the April 7, 2022 "Notification of Interpretation of Section 188 of the Workforce Innovation and Opportunity Act" (87 FR 20321), which had construed § 188's bar on discrimination "because of . . . sex" to reach sexual orientation, gender identity, and transgender status, and which had directed the Civil Rights Center to process complaints, investigations, and compliance reviews on that basis. The rescission notice reasons that § 188(a)(2) prohibits sex discrimination "except as otherwise permitted under title IX" and that § 188(e) requires the Department to adopt standards "consistent with" the statutes listed in § 188(a)(1) — chief among them Title IX — so that "sex" under § 188 must carry its Title IX meaning. It then relies on post-2022 Title IX decisions (Adams v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc), holding "sex" in Title IX means biological sex as understood in 1972; Chief Judge Sutton's reasoning in the Sixth Circuit's Tennessee v. Cardona litigation that "Title VII's definition of sex discrimination under Bostock simply does not mean the same thing for other anti-discrimination mandates"; and district-court decisions from E.D. Ky., N.D. Tex., W.D. La., D. Kan., W.D. Okla., and E.D. Mo.) to conclude that Bostock v. Clayton County does not control. The notice acknowledges that the Department's own regulation, 29 CFR 38.7(a), still states that "[t]he term sex includes, but is not limited to, pregnancy, childbirth, and related medical conditions, transgender status, and gender identity," and states that the Department "will consider rulemaking and related subregulatory guidance to ensure its regulations and enforcement practices are aligned with recent judicial developments." Notably, the notice cites no executive order — not E.O. 14168 and not E.O. 14173 — resting entirely on the Title IX-incorporation theory. It is effective immediately and contains no transition provision for pending complaints, and does not address American Job Centers or WIOA Title I recipients by name.