New Biden administration Title IX rule protects transgender students’ bathroom & pronoun use at school

restroom signs
restroom signs

School districts that don’t respect transgender and nonbinary students’ pronouns or force them to use restrooms that don’t align with their gender identity could be committing federal civil rights violations beginning this fall.

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Today, the U.S. Department of Education announced the issuance of a final rule under Title IX to protect people in public schools from sex-based discrimination and harassment. The announcement marks a significant update in federal efforts to combat sex discrimination in federally funded educational institutions. During a call with reporters, Secretary of Education Miguel Cardona emphasized the administration’s dedication to ensuring that Title IX effectively serves all students by providing safe, welcoming, and rights-respecting educational environments.

“These regulations make it crystal clear that no one should have to abandon their educational aspirations due to discrimination, whether it’s based on pregnancy, sexual orientation, gender identity, or other sex-based factors,” Cardona said.

He also highlighted the Biden-Harris administration’s commitment to creating inclusive educational environments for all students.

“These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights,” he said.

Assistant Secretary for Civil Rights Catherine Lhamon detailed the specifics of the regulations, noting that they were developed after extensive engagement and feedback, including over 240,000 public comments “These regulations are not just updates; they are an overhaul aimed at ensuring full protection under Title IX,” Lhamon explained.

The final regulations provide explicit protections for LGBTQ+ students, who often face significant challenges and discrimination in educational settings. The new rules expressly prohibit discrimination based on sexual orientation and gender identity, aligning with the U.S. Supreme Court’s decision in Bostock v. Clayton County, which recognized such forms of discrimination as violations of civil rights.

During the press call, The Advocate inquired about the specific protections for transgender students, particularly in light of recent anti-LGBTQ+ sentiments and policies in some Republican-controlled states. A senior administration official responded, detailing the rule’s implications: “The new rule puts in the regulation itself that discrimination on the basis of gender identity and sexual orientation violates Title IX. And if, in an investigation, we determine that a student is harassed based on gender identity and subject to a hostile environment that meets the standard in these new regulations, then we would be able to find a violation, and we would be able to ensure that the school comes into compliance under Title IX.”

Further discussions addressed how the regulations manage the usage of pronouns and access to facilities corresponding to a student’s gender identity. The official elaborated on the approach.

“The way that we would analyze that question is to assess whether a student is experiencing a sex-based hostile environment... And if the facts meet those standards, which is if, under the totality of the circumstances, sex-based conduct that is subjectively and objectively offensive to a student and to a person in the school community and it rises to the level that it limits or denies access to education, then a hostile environment would be recognized and we would evaluate whether the school had taken sufficient steps to remedy that hostile environment," they said.

The announcement of these regulations comes at a critical time, highlighted by recent tragic events such as the death of Nex Benedict, a transgender student in Oklahoma who took his life after being bullied. Nex’s death has spurred a federal civil rights investigation into Owasso Public Schools, examining whether the school’s response to harassment complaints was adequate. The senior administration official wouldn’t address Benedict’s case specifically, noting the ongoing investigation prompted by a complaint from the Human Rights Campaign.

The updated regulations protect all students and enhance protections against all forms of sex-based harassment and discrimination. They establish clear requirements for schools to take prompt and effective action to end any sex discrimination in their education programs or activities, prevent its recurrence, and remedy its effects. Schools are also required to respond promptly to all complaints of sex discrimination with a fair, transparent, and reliable process that includes trained, unbiased decision-makers to evaluate all relevant and not otherwise impermissible evidence.

During the discussions, it was noted that the current regulations do not address the participation of transgender students on sports teams. An administration official explained that the department’s rulemaking process for a Title IX regulation related to athletics is still ongoing.

As schools prepare to implement the new regulations, the Department of Education will provide resources and technical assistance to ensure the new rules are understood and applied.

The new regulations go into effect on August 1.