Discrimination against transgender students would be a violation of federal civil rights law under proposed regulations the Education Department is expected to finalize in the coming weeks.
Regulations carry the power of law. The rules, if finalized, would set up a clash with state laws that bar transgender women from competing in women’s sports. Those statutes are already being challenged in the courts.
The draft text of the regulation included this key sentence, according to the people familiar with it: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”
The regulations would also rewrite, for the third time in three administrations, complex rules for universities and K-12 schools in adjudicating allegations of sexual harassment and assault. The Trump administration’s version included more due process rights for the accused, and the new version is expected to be friendlier to those leveling the accusations.
National debate over gay and lesbian rights has quieted, but there remains a storm of controversy around transgender rights, often focused on bathroom use and, in more recent months, participation in sports. Twelve states, including Utah, Texas, Florida, Idaho and South Dakota, have passed laws banning transgender girls and women from participating in girls’ and women’s sports.
They argue that transgender girls have a biological advantage over cisgender girls, though others debate that point.
The highly anticipated Title IX rules are under review at the White House. The next step is a notice of proposed rulemaking, giving the public the chance to comment before they are finalized.
“Under the Title IX, every student who wants to should be able to play and feel welcome as who they are,” Amit Paley, chief executive of the Trevor Project, a suicide prevention and crisis intervention organization for LGBTQ youths, told the department. “By ensuring that LGBTQ young people have access to a welcoming and affirming school environment, the Department of Education can improve student mental health and well-being and ultimately save lives.”
The department also heard from cisgender women who see transgender women as unfair competition. Cynthia Monteleone, a world champion sprinter and girls’ track coach, spoke about her daughter racing and coming in second place against a transgender girl who had played volleyball as a boy. “My daughter trained for two years for this first race. This transgender athlete trained for track for two weeks,” she said.
She added that she tries to teach the girls she coaches that hard work pays off. “How can I continue to teach this … when, quite literally, average boys can change their identity and beat the top female in the competition?” she asked.
The issue has been thrust into the headlines by Lia Thomas, a transgender woman who swims for the University of Pennsylvania and this month won an NCAA Division I championship in the 500-yard women’s freestyle. She swam for the Penn men’s team before undergoing more than two years of hormone replacement therapy.
Florida Gov. Ron DeSantis (R) responded to Thomas’s victory by declaring the second-place finisher, a Florida resident, to be the “rightful winner.”
Other Republicans have also staked out strong anti-transgender positions, notably Texas Gov. Greg Abbott (R), who directed state agencies to investigate parents who allow gender-affirming care for transgender children. The state attorney general declared such treatments to be a form of “child abuse.”
The language of the new federal regulation regarding gender identity or sexual orientation could change, but that’s not expected given that the Biden administration has repeatedly said it views Title IX’s protections to include them both. Officials cite a related 2020 Supreme Court decision regarding employment discrimination.
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion and discrimination — and our LGBTQ+ students have the same rights and deserve the same protections,” Education Secretary Miguel Cardona said last year.
Cardona also taped a video with his cousin, Alex Cardona, a transgender man. In their conversation, the secretary says: “I also want to send a message really loud and clear: We’ve got your back, that our schools need to be safe places for all students.”
Much of the attention around the forthcoming Title IX regulation centers on how schools must handle allegations of sexual harassment and assault. The Obama administration issued informal guidance on sexual violence complaints, which Education Secretary Betsy DeVos immediately rescinded. In May 2020, DeVos replaced that guidance with a formal regulation, setting a strict definition for what constitutes sexual harassment and giving more due process rights to those accused.
The Biden administration announced last year that it would rewrite those regulations, and the new version is expected to be friendlier to accusers and survivors of sexual harassment and violence.
“We know from the cases we’ve litigated that too often survivors are ignored, disbelieved or even punished for reporting sexual harassment,” said Shiwali Patel, director of justice for student survivors at the National Women’s Law Center. “The Trump rule requires schools to ignore many instances of sexual harassment.”
Title IX is a 1972 law that bars discrimination on the basis of sex in any educational program or activity that receives federal money. Schools found in violation risk losing federal aid. Advocates have long held that this definition rightfully includes discrimination on the basis of sexual orientation or gender identity.
They got backup in 2020, when the Supreme Court ruled, 6-3, that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from employment discrimination. Title VII bars discrimination because of sex, and in the landmark case of Bostock v. Clayton County, Ga., the high court said people fired for being gay or transgender are being treated differently because of their sex.
The case did not directly address sex discrimination in education, but interpretations of Title IX have typically echoed those of Title VII because the language is so similar.
In her final days in office, in January 2021, DeVos issued a memorandum arguing that the Bostock decision did not bar similar discrimination in education. In June 2021, the Biden administration issued its own guidance arguing the opposite, announcing that this interpretation would guide the department in processing complaints and conducting investigations.
Since then, the Office for Civil Rights has completed a handful of investigations related to transgender discrimination, a senior agency official said. One case involved a student who was barred from using a locker room. After the complaint was filed, the district changed its policy. In another case, an adult alleged discrimination for advocating for transgender rights; the department found no discrimination. In a third case, the department mediated a solution involving a transgender student who alleged harassment at school.
Another 54 cases involving transgender discrimination are pending, a spokeswoman said. In a resource flier meant to help schools, the Education Department offered several hypothetical examples of situations that the civil rights office might investigate.
Among them: A lesbian student isn’t allowed to bring her girlfriend to the prom. School administrators fail to protect a transgender boy who is being harassed by peers and called by his former name, or a college fails to aid a gay student who is harassed for being gay. A high school bars a transgender girl from using the girls’ bathroom.
“School is a very vulnerable place for LGBTQ youth,” said Sarah Warbelow, legal director at the Human Rights Campaign, an advocacy group. “The more people understand their [legal] obligations, the better off everyone is.”