LGBTQ students wonder what’s next as conservative states seek to block new Title IX rules

This story was first published by Chalkbeat. Read the original here.

For LGBTQ youth whose rights have been under attack by Republican state officials, new federal regulations protecting them from discrimination at school were a welcome sign that someone in power had their back.

But within two days of new Title IX rules being published Monday, top officials in 15 states announced they were suing to block the new rules from going into effect. In four separate lawsuits, Republican officials alleged the new rules endangered free speech and represented an attack on the very group Title IX was designed to protect: women.

Officials in many of these states had already warned schools not to implement the new rules, which would protect students’ ability to use restrooms that match their gender identity and use the names and pronouns they prefer.

“Do not comply,” Louisiana State Superintendent of Education Cade Brumley told schools at a Monday press conference announcing his state’s lawsuit. “Allow this process, this legal process to unfold, rely on our office if you need support, but do not comply with these radical rules from the Biden administration.”

The lawsuits highlight an ongoing culture war centered on the rights of trans students at school. Republican states have passed a host of laws limiting trans youth’s participation in sports, which bathrooms these students can use, and which names they can go by. Supporters of these laws say they protect fairness, privacy, and free speech. Advocates for LGBTQ youth say they endanger vulnerable students and actually infringe on privacy and free speech, and that the new Biden Title IX rules give students key legal safeguards.

Some legal experts believe the new Title IX rules — which clarify that gender identity is covered by laws prohibiting sex discrimination — are likely to withstand conservative challenges. In the meantime, teachers and school administrators are caught between federal law, which usually takes precedence, and state law, which can loom larger in the classroom.

And queer youth and their allies say their states’ defiance of federal law reinforces the idea that their existence is a problem and that their government is targeting them.

“You already had kids who literally did not use the bathroom at school,” said A’Niya Robinson, an advocacy strategist at the ACLU of Louisiana. “They were afraid that they would be targeted for just completing a bodily function. These rules are a reprieve from kids having to experience that, and then to have your state want to undo that, it’s just unfortunate.”

States Say New Biden Rules Undermine Title IX

In 2016, under former President Barack Obama, top officials at the Education and Justice departments issued guidance to schools saying that transgender students were protected from discrimination based on their gender identity under Title IX.

But that guidance was quickly rescinded by the Trump administration.

When President Joe Biden took office, officials moved to make the Obama-era interpretation binding by going through nearly two years of formal rule-making. The final rule, which the Biden administration announced April 19 and is slated to take effect Aug. 1, gives LGBTQ students and others explicit protection from sex discrimination “based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The backlash has been swift. Within days, top education officials in several states told schools to disregard the rule changes. This week, 15 states filed four separate lawsuits seeking to block the rules from taking effect.

At a Monday press conference announcing one of the lawsuits, Louisiana Attorney General Liz Murrill said the new regulations sought “to remake American societal norms through classrooms, lunchrooms, bathrooms, and locker rooms of American schools.”

“These rules eviscerate Title IX,” Murrill said.

The following day, Tennessee Attorney General Jonathan Skrmetti said the text of Title IX refers “over and over again to a sex binary, to men and women, to one sex or the other.”

Though each lawsuit is slightly different, they all essentially argue that the U.S. Department of Education exceeded its authority by expanding the definition of what constitutes sex discrimination, and that the changes run contrary to the original intent of Title IX.

Even though the new rules don’t address sports and the Education Department is working on separate sports guidance, opponents of the new rules have said they believe they open the door to widespread participation by trans athletes in girls’ and women’s sports.

That view was underscored at Tuesday’s joint press conference with the attorneys general of Tennessee and West Virginia, which featured elite swimmer Riley Gaines. Gaines became an outspoken advocate for keeping transgender women out of women’s sports after having to compete against and share a locker room with transgender swimmer Lia Thomas.

Similarly, West Virginia is engaged in ongoing litigation to prevent a 13-year-old from competing in girls’ track.

The bulk of the concerns in the lawsuits focus on trans girls being permitted to use girls’ bathrooms and locker rooms, and that school staff will be compelled to call trans and non-binary students by their preferred names and pronouns.

Skrmetti said the facilities concern is not just about gender identity. He fears that the new Title IX rules could require that any boy be allowed in girls’ restrooms. A girl who expressed discomfort with that could be liable for creating an illegal hostile environment because she questioned that students’ gender, he said.

But the Title IX rules make clear that schools can still maintain single-gender restrooms.

While the new rules bar invasive medical tests or burdensome documentation to establish gender identity, schools can request a written confirmation from the student, a parent, or other adult. Schools can also rely on the child’s consistent self-identification.

Several states’ laws forbid trans students from accessing bathrooms that correspond with their gender identity and permit school staff to use the pronouns and name a student was assigned at birth, even if the student now uses a different name or pronouns.

National surveys have repeatedly found that these kinds of policies negatively affect LGBTQ youth, who often feel unsafe at school, struggle with mental health, and are more likely to consider suicide than their peers. When the Education Department gathered feedback on a draft version of the rules, officials said many students reported that schools ignored bullying, threats, and harassment based on their gender identity, leaving them in constant fear and anxiety.

For Zelda Duitch, who is trans and co-president of the Gender Sexuality Alliance at Benjamin Franklin High School in New Orleans, finding a supportive school has been critical to his educational success.

“When I was socially transitioning, all of my teachers were really supportive,” he said. “That was integral not just for my mental health, but for my education. I would not have been able to learn if I hadn’t been accepted.”

When Florida adopted its “Don’t Say Gay” bill, Zelda felt sorry for queer youth there. Now his own state has a ban on gender-affirming care for minors, and a package of anti-LGBTQ bills is sailing through the Louisiana Legislature.

“It’s hard to describe how much anger and pain there is,” Zelda said. “It made me feel like my state was trying to kill me.”

Why the New Title IX Rules Matter

Practically, the new rules matter because they give students, families, and advocates sturdier ground to stand on when they file a federal civil rights complaint or a lawsuit seeking to challenge a school’s policy.

The Title IX complaint process can be slow and cumbersome, but it’s a powerful tool for students to protect their rights, said Craig White, who runs the supportive schools program for the Campaign for Southern Equality. That’s especially true for students in small towns who may not have access to attorneys or large advocacy groups.

Students can say: “This discrimination is wrong, and I’m standing up,” White said.

The new rules explicitly state that denying a trans student access to a bathroom or locker room that corresponds with their gender identity causes harm to the student in a way that generally violates Title IX.

If a teacher repeatedly refused to call a student by their preferred name and pronouns, leaving the student feeling unwelcome at school, that could violate Title IX, too.

Suzanne Eckes, a professor of education law at the University of Wisconsin-Madison, says the big legal question now is whether the definition of sex in Title IX can include sexual orientation and gender identity.

The Supreme Court decided in 2020 in Bostock v. Clayton County that employees are protected from sex discrimination, including based on sexual orientation and gender identity, under Title VII, another federal civil rights law.

And while there are a few outlier cases, plenty of federal courts have already ruled that Title IX should be interpreted the same way, Eckes said.

“The vast majority of federal and state courts have ended in favorable results for trans students,” Eckes said.

But Matt Sharp, senior counsel for conservative legal group the Alliance Defending Freedom believes the Bostock case doesn’t apply in many of the scenarios covered under Title IX, an interpretation shared by many Republican AGs.

Access to bathrooms and locker rooms implicates personal privacy, he said, and courts have found that physiological differences between men and women justify separate facilities.

Advocates Say Anti-LGTBQ Laws Silence Allies, Spread Fear

White, of the Campaign for Southern Equality, said the climate fostered by states’ policies can send ripple effects through the school day.

A student might be misgendered by a teacher in first period, attract scrutiny for which bathroom they use in second period, be unable to use a locker room in third period, then get bullied at lunch — only to be told by a lunch monitor that other students don’t agree with their “lifestyle.”

“Students do not experience these as isolated incidents,” White said.

But he also noted that such laws can spread fear and silence allies. In Indiana, for example, where a new law requires schools to notify parents if a student wants to go by a different name, Gender Sexuality Alliance clubs have stopped meeting in many schools, as students fear sponsors would be required to out them, said Chris Paulsen, CEO of Indiana Youth Group, which supports GSAs across the state.

Indiana is among the states that have directed schools not to change their policies to comply with the new Title IX rules, and it has joined Tennessee’s lawsuit.

Peyton Rose Michelle, who leads Louisiana Trans Advocates, remembers being bullied as early as first grade and called slurs she didn’t understand. By middle school, she had trained herself not to use the bathroom until she got home around 4:30 p.m.

She hears about students doing the same thing today — as well as skipping school to avoid bullying. The new Title IX protections are about doing the right thing for kids, she said.

“Bathrooms in middle school are for peeing and looking at yourself in the mirror,” Michelle said, “and trans kids should be able to do both of those things without fear of bullying and harassment.”

Erica Meltzer is Chalkbeat’s national editor based in Colorado. Contact Erica at emeltzer@chalkbeat.org. Kalyn Belsha is a senior national education reporter based in Chicago. Contact her at kbelsha@chalkbeat.orgChalkbeat is a nonprofit news site covering educational change in public schools.