Federal protections of transgender students are launching where courts haven’t blocked them
New federal protections for transgender students at U.S. schools and colleges will take effect Thursday with muted impact because judges have temporarily blocked enforcement in 21 states and hundreds of individual colleges and schools across the country.
The regulation also adds protections for pregnant students and students who are parents, and details how schools must respond to sexual misconduct complaints.
For schools, the impact of the court challenges could be a combination of confusion and inertia in terms of compliance as the academic year begins.
“I think it is likely that school district-to-school district or state-to-state, we’re going to see more or less a continuation of the current status quo,” said Elana Redfield, federal policy director at the Williams Institute at the UCLA School of Law.
The rights of transgender people — and especially young people — have become a major political battleground in recent years as trans visibility has increased. Most Republican-controlled states have banned gender-affirming health care for transgender minors, and several have adopted policies limiting which school bathrooms trans people can use and barring trans girls from some sports competitions.
In April, President Joe Biden’s administration sought to settle some of the contention with a regulation to safeguard rights of LGBTQ+ students under Title IX, the 1972 law against sex discrimination in schools that receive federal money. The rule was two years in the making and drew 240,000 responses — a record for the Education Department.
The rule declares that it’s unlawful discrimination to treat transgender students differently from their classmates, including by restricting bathroom access. It does not explicitly address sports participation, a particularly contentious topic.
It also enhances protections for students who are pregnant or have children, widens the scope of the sexual misconduct cases schools must investigate, and removes a Trump administration rule requiring schools to let the accused cross-examine their accusers in live hearings.
The U.S. Department of Justice has asked the Supreme Court for permission to enforce components of the rule that were not challenged by states, but it’s not clear when the justices might rule.
Meanwhile, Title IX enforcement remains highly unsettled.
In a series of rulings, federal courts have declared that the rule cannot be enforced in most of the Republican states that sued while the litigation continues. In a ruling Tuesday, a judge in Alabama went the other way, allowing enforcement to start in Alabama, Florida, Georgia and South Carolina.
A Kansas-based federal judge appointed by former President Donald Trump added another wrinkle, asserting power over states led by Democrats: He said the rule cannot be enforced in schools attended by the children of members of Moms for Liberty or colleges with members of Young America’s Foundation or Female Athletes United. That’s keeping the regulation from taking effect in hundreds of colleges and some 1,700 schools in states where it can otherwise be enforced.
In many school districts across the country, the rule is to be enforced in some schools but can’t be followed in others.
“There aren’t many other parallels I can give you of two different sets of rules applying in the very same place, one school on one side of the street operating from a different playbook from a school on the other side of the street,” said Brett Sokolow, chair of the Association of Title IX Administrators.
Administrators have been frustrated by lack of guidance from the Biden administration, he said. When the Education Department recently sent schools information about implementing the new policies, it noted that they don’t apply in many places. Sokolow said some districts may need to consider having two separate teams — one trained on the previous rules, the other on the 2024 version — to be prepared for either scenario.
Jay Warona, the deputy executive director and general counsel for the New York State School Boards Association, said his state already offers transgender students some similar protections, but not all of the other components of the new regulation are addressed in state policy.
Warona said he’s fielding messages from school districts wondering what to do, and he’s telling them to check with their district lawyers.
Caius Willingham, senior policy advocate at the National Center for Transgender Equality, said it’s important to note that the injunctions don’t prevent school districts from having similar policies, even as they bar the federal government from enforcing its new regulations in some places.
Meanwhile, students are facing real impacts. Some people barred from using the bathroom that aligns with their gender hold their bladder all day, avoid hydrating or even drop out of school, he said.
“If you can’t meaningfully participate in the educational systems as your true self,” Willingham said, “you’re not going to be able to thrive.”
For Kaemo Mainard O’Connell, a transgender and nonbinary high school senior in Arkansas, the lack of federal protections seems like a signal to encourage behavior such as deadnaming and bullying.
“It means I’m going to have to work much harder to be respected by teachers and by students,” they said. “What not having federal protection does is, it makes it seem like my issues are not real issues.”
Since Arkansas now prohibits transgender students from using bathrooms that align with their gender identity, Kaemo has instead been using a single-person restroom at the school, and is required to sign in and often wait before using it.
Similar worries are shared by families of trans kids in Utah, where lawmakers in June passed resolutions instructing state employees to disregard the Title IX directive. Utah is among the states challenging the rules in court, but is struggling to enforce its bathroom restrictions meanwhile: A tip form to report possible violations has been flooded with hoax submissions, and the state official tasked with filtering through them has made his lack of enthusiasm known.
“The bathroom law brought unpleasant conversations and definitely made our kiddo feel othered,” said Utah mom Grace Cooper, whose child is nonbinary. “It also brought a lot of allies out of the woodwork, but without federal protections, my worries as a mother are ever-present.”
