The U.S. Department of Education last week issued its final rule governing schools' obligations to guarantee all students, including survivors of sexual harassment, LGBTQ students, and pregnant and parenting students, have full and equal access to educational opportunities regardless of sex. Title IX is the federal civil rights law that was enacted as part of the Education Amendments in 1972. It prohibits sex-based discrimination in any school or education program that receives federal funding. Key to the new rule is the Biden administration's view that sex discrimination includes discrimination based on gender identity as well as sexual orientation.
This, of course, is opposed by conservatives, many of whom have continued pushing to ban LGBTQ-themed books from schools and forcing students to use facilities based on their sex assigned at birth, rather than their current identity. Conservative school board members in many parts of the country, including California, have forged ahead with policies that compel school personnel to out trans students to their parents without their consent.
It is in this context that the new final rule will help LGBTQ students. The American Civil Liberties Union, for example, praised the new rule. "At a critical time, when trans youth are being used by politicians as a punching bag, the final rule issues an important reminder that schools cannot discriminate based on gender identity, transgender status, or sexual orientation," stated Louise Melling, ACLU deputy legal director.
Melling also touted the new rule's inclusion of guidance on the rights of pregnant and parenting students and school employees.
"The rule includes provisions that require schools to address and investigate complaints of sexual harassment, restoring standards that were in place for decades and that mirror those used for other forms of harassment," Melling added.
Specifically, the ACLU supports the provisions in the final regulation that make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes; restores the long-standing "severe or pervasive" standard for sex-based discrimination; and requires schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students' access to education. This last one is important because there are lots of reports of such off campus incidents, whether online or in person.
Jennifer Levi, a trans-identified person who is the senior director of transgender and queer rights at GLBTQ+ Legal Advocates and defenders, supports the new rule.
"This important rule could not come at a more critical time. LGBTQ+ students across the country are under attack and more vulnerable than ever," Levy stated. "Hostile states and local school committees have wrongly cut back important school protections that queer and transgender young people need to thrive. GLAD and our partner organizations look forward to working with schools and school districts to ensure that local policies and practices comply with federal law."
In a call with reporters, Education Secretary Miguel Cardona stated, "These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights."
The legal landscape has changed since former President Donald Trump's administration imposed its policies, including one that more narrowly defined sexual harassment. And in 2020, the U.S. Supreme Court, in Bostock v. Clayton County, ruled that sex discrimination in employment includes gender identity and sexual orientation. Crafting the Title IX rule to align with that makes sense.
The Washington Post reported, "The combination of these two issues — sexual assault and transgender rights — drew enormous public interest, with some 240,000 public comments submitted in response to the proposed version published in 2022. The new rules take effect August 1, in time for the start of the next school year."
Overall the new rule should be welcomed by students and educators alike.
Athletics
There is one area the new Title IX rule does not cover — athletics and the contentious issue of trans girls playing on girls' sports teams. There is a separate regulation for that issue and it is currently under review. The Post reported there is no timetable for when it would be finalized and noted it likely was being delayed "to avoid injecting the matter into the presidential campaign, where [Joe] Biden faces a close race against Trump."
As we noted in an editorial last year when the proposed Title IX rule on sports was issued, the Biden administration is trying to find a middle ground to allow students in elementary and middle school to play sports on teams that correspond to their gender identity. At issue in the proposal is a part that would allow schools to restrict the participation of trans athletes, but those must be supported by evidence and minimize harm to trans students. However, the other main part of the rule change is that the statewide blanket bans on trans students playing on sports teams that match their gender identity will not be allowed, nor would schools be able to enact across-the-board bans.
We support the Biden administration as it weighs these issues and works to put the best interest of students at the forefront of policy changes.
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