The U.S. Department of Education (DOE) has unveiled its long-awaited overview of Title IX anti-discrimination protections for transgender and other queer students. The new rules do not cover the hot-button issue of transgender student-athletes, but the new rules have still been praised and criticized by LGBTQ+ and civil rights groups nonetheless.
The new rules, which invalidate numerous anti-transgender policies developed under former president Donald Trump, will go into effect on August 1, before the start of the upcoming school year. Any schools that receive federal funding will be expected to follow the rules or risk federal lawsuits, a DOE investigation, and possible loss of funding.
The revised rules rely on the Supreme Court’s 2020 Bostock v. Clayton County decision, which said that laws forbidding sex-based discrimination include sexual orientation and gender identity. As such, the new rules forbid discriminatory or harassing behavior towards all students, including ones who are pregnant or have terminated a pregnancy.
The new rules are likely to upset Republicans who have spent the past few years pushing policies that prohibit educators from accommodating trans students.
The Trump administration spent four years fighting against the idea that laws that ban discrimination “based on sex” ban anti-LGBTQ+ discrimination, particularly in schools. In 2017, then-Secretary of Education Betsy DeVos issued guidance to schools saying that Title IX did not protect LGBTQ students, shortly after she and Attorney General Jeff Sessions revoked a guidance from the administration of former President Barack Obama that said the opposite.
The Biden Administration had promised to present the newly unveiled rules by January, but the DOE said its release was delayed due to an unprecedented number of over 240,000 comments submitted during the new rules’ 30-day public response period.
The newly unveiled rules don’t mention trans athletes. In March, two unnamed administration sources told The Washngton Post that Biden wanted to avoid the issue during an election year, lest it aid Trump’s anti-transgender Republican voter base.
Nevertheless, last April, the DOE proposed a rule that would stop schools from adopting policies that allow transgender student-athletes to be entirely excluded from sports teams matching their gender identity.
LGBTQ+ organizations celebrate but say more is needed
The LGBTQ+ advocacy organization Lambda Legal’s Nonbinary and Transgender Rights Project Director Sasha Buchert praised the new rules, writing, “We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration.”
“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” Buchert added. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”
Out gay Rep. Mark Takano (D-CA) wrote, “The Education Department and Biden Administration showed real courage today, delivering on a long-held promise to ensure that the federal government does more to protect all Americans—especially LGBTQ Americans—from discrimination. This groundbreaking rule is a major victory, but we still have much to do. We need to enshrine and expand its protections by passing the Equality Act because for too many Americans, their rights and protections depend on the zip code they live in.”
In a statement both celebrating and criticizing the newly unveiled rules, the National Women’s Law Center wrote, “As we celebrate this milestone, we recognize that this regulation does not go far enough in making the law’s protections clear for all student athletes.” The statement was signed by 22 other organizations, including LGBTQ+ advocacy groups like GLSEN, the Human Rights Campaign, PFLAG National, and the National Center for Transgender Equality.
“Currently, 37% of transgender, nonbinary, and intersex youth live in states with laws that ban them from participating in sports consistent with their gender identity,” the statement continued.
“We call on President Biden and his administration to finish the job by providing further clarification for inclusive protections in athletics and robustly enforcing Title IX to ensure all students, including transgender, nonbinary, and intersex student athletes, realize the law’s full protections — because all students deserve the freedom to be themselves, to learn and to do their best at school,” the statement concluded.
