The U.S. Department of Education (DOE) has released regulations that will better protect LGBTQ students, sexual violence survivors, and others against discrimination in schools. Regulations addressing the inclusion of transgender, nonbinary, and intersex students in school sports, however, are still pending.
The New Rule: “A Big Deal”
Title IX, part of a broader educational law enacted in 1972, applies to all schools and education programs receiving federal taxpayer money. The new regulations (the “Final Rule,” announced Friday), affirm that Title IX protects students and school employees from sex-based discrimination that includes discrimination based on sexual orientation, gender identity, and sex stereotypes and characteristics, as well as sexual violence and other sex-based harassment. The rule also clarifies the steps a school must take to protect students, employees, and applicants from discrimination based on pregnancy or related conditions.
GLSEN called the news “a big deal,” and explained that the rule includes three major revisions impacting LGBTQ students:
- clarifying that sex-based discrimination prohibited by Title IX is inclusive of discrimination on the basis of sexual orientation, gender identity, and sex characteristics. The inclusion of language about sex characteristics is particularly critical for ensuring that intersex people are protected by Title IX.
- clarifying that Title IX prohibits sex-based harassment, instead of only sexual harassment. This is particularly critical for ensuring that verbal and physical harassment of LGBTQI+ students is addressed.
- clarifying that sex-separated programs and activities—including bathrooms, locker rooms, overnight accommodations, and sex education classes—cannot exclude a person from a space consistent with their gender identity.
The rule, which goes into effect on August 1, 2024, also requires schools to take “prompt and effective action” to stop such discrimination, prevent its recurrence, and remedy its effects, via “a fair, transparent, and reliable process.” Additionally, it prohibits retaliation against students, employees, and others who exercise their Title IX rights; requires schools to communicate their nondiscrimination policies and procedures; supports the right of parents and guardians to act on behalf of their children in elementary and secondary schools; and protects student privacy in these processes. Schools that do not follow these regulations risk losing their federal funding.
The Background
The new rule comes as a response to the rollback of Title IX protections for LGBTQ students under former President Trump, which was itself a reversal of the Obama administration’s policies. President Biden in 2021 then issued an Executive Order affirming that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on sex, also prohibits discrimination based on sexual orientation and gender identity. The Department of Justice in 2021 confirmed that Executive Order, as I explained in this post, and directed other federal agencies “to review other laws that prohibit sex discrimination, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation. We conclude that Title IX does.”
The DOE in 2022 thus proposed a set of regulations to clarify and codify such protections under Title IX. As part of the required process for federal rulemaking, the department received and reviewed more than 240,000 comments, according to the Final Rule.
The Response
GLSEN, along with PFLAG National, the National Center for Transgender Equality, the Human Rights Campaign, and 16 other youth advocacy, gender justice, and social justice organizations, said in a joint statement:
We commend the Biden administration for listening to the expert voices of students, advocates, parents, educators, and researchers, and for delivering on their commitment to clarify Title IX’s vital civil rights protections. By rescinding the Trump administration’s harmful and restrictive sex harassment rule, and making protections clearer for survivors, pregnant and parenting students, and LGBTQIA+ students, this rule will ensure every student has the freedom to learn and to be themselves.
More Work to Do
The DOE, in its press statement, added, “The Department’s rulemaking process is still ongoing for a Title IX regulation related to athletics. The Department proposed amendments to its athletics regulations in April 2023, and received over 150,000 public comments, which by law must be carefully considered.”
The statement from GLSEN and the other organizations addressed this, too, noting that 37% of transgender, nonbinary, and intersex youth now live in states whose laws ban them from participating in sports aligned with their gender identity. The organizations called on the Biden 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.”
Unnamed sources told the Washington Post in March, however, that the Biden administration was holding off on addressing the athletics issue before November’s election, for fear that it is too much of a “hot topic.”
While that delay may seem unbearable, whatever the reason, I’ll offer this thought: If Donald Trump wins in November, I’d bet that the athletic nondiscrimination protections will never see the light of day, and that we will see yet another reversal of all the Title IX regulations protecting LGBTQ students. Which reminds me: Are you registered to vote?