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After the nation’s leading gender equity law, Title IX, received a long-anticipated update, the reviews are in — and they’re as mixed as a can of machine-shaken paint at Sherwin-WIlliams.
Civil rights advocates at the Southern Poverty Law Center praised the revisions as “bolstering protections for LGBTQ+ students.” Meanwhile, one sexual violence researcher said the new regulations “abandoned” trans athletes. And Riley Gaines, an athlete who opposes transgender athletes’ participation in women’s sports, said the changes “officially abolished Title IX as we knew it.”
Some states, including Florida, Louisiana, Oklahoma and South Carolina have directed schools to ignore the policy’s directives. “We will not comply,” Florida’s Gov. Ron DeSantis said April 25.
Title IX, enacted in 1972, prohibits sex-based discrimination in federally funded schools. The law applies to admissions, classrooms, and protecting students against sexual harassment, but it is most well-known for how it changed athletics by requiring that women and men be provided equitable opportunities to participate.
The most recent changes came in response to President Joe Biden’s 2021 request that the Department of Education review its regulations for enforcing Title IX following Trump administration-era changes and a 2020 Supreme Court ruling that updates the understanding of “sex discrimination” to include discrimination on the basis of gender identity and sexual orientation.
After two years and 240,000 public comments, the Education Department released its updated “Final Title IX Regulations” April 19.
The new “rule” made changes to several policies around sexual misconduct investigations, such as expanding the definition of sexual harassment. But much of the attention has been on how this will affect LGBTQ+ students.
Despite the recent controversy over transgender athletes and Title IX’s strong association with athletics, the changes stopped short of providing guidance on transgender athletes in this set of regulations.
Why are LGBTQ+ identities now included in “sex discrimination”?
The new regulations expand Title IX protections to LGBTQ+ students in line with the landmark 2020 Supreme Court decision, Bostock v. Clayton County. Weighing a series of cases in which employees said they were fired for being gay or transgender, the court in Bostock held that terminating people for their sexual orientation or gender identity amounts to “sex discrimination” prohibited under Title VII of the Civil Rights Act of 1964.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Justice Neil Gorsuch wrote in the majority opinion. That a woman being attracted to men is tolerated, for example, when a man being attracted to men is not, he said, shows such discrimination.
Since Bostock, legal advocates and the Biden administration have argued that the same reasoning must be applied to other laws that prohibit “sex discrimination,” such as the Fair Housing Act, Immigration and Nationality Act, and Title IX.
The 2024 regulations essentially do that and now consider discrimination based on gender identity and sexual orientation to fall under Title IX.
What does this mean for students, especially in states with LGBTQ+ school policies?
The regulations take effect Aug. 1.
LGBTQ+ students will now be able to turn to Title IX protections when they feel they have been discriminated against because of their sexual orientation or gender identity.
“You’re not going to be dismissed because you don’t have standing under the statute to bring the argument,” Ohio State University law professor Ruth Colker said.
Oklahoma Gov. Kevin Stitt signs a bill that prevents transgender girls and women from competing on female sports teams, March 30, 2022, in Oklahoma City. (AP)
For example, a student losing a part in a school play after a teacher finds out the student is gay could qualify as a discrimination claim investigated under Title IX under the law’s revision.
“Things that had previously been protected only by interpretive guidance are now protected by force of regulation,” said Helen Drew, a sports law professor at the University at Buffalo.
But the question gets more complicated when considering local or state laws that are potentially discriminatory. Policies such as transgender “bathroom bans” are likely to be in the “crosshairs,” Drew said.
Such laws will likely face lawsuits over whether they constitute sex discrimination. States may make arguments about privacy or other rationales for a given policy, Colker said, “And the question will be, does that rationale survive scrutiny under the federal statute?”
“I think we’re setting up a Supreme Court case,” Drew said.
A Department of Education spokesperson told PolitiFact that state or local law does not supersede Title IX compliance.
Still, some state leaders issued statements advising schools to not alter any policy and suggested plans to challenge the regulations in court.
Superintendent of Public Instruction Ryan Walters presides meeting discuss to the U.S. Department of Education’s “Proposed Change to its Title IX Regulations on Students’ Eligibility for Athletic Teams,” April 12, 2023 (AP)
The department can theoretically revoke federal funding for schools that don’t comply with Title IX, Drew said, but the agency has never used that power. Drew likened it to having an atomic bomb: The federal agency has the power to use it, but it is “very unlikely” that they are “going to drop it,” she said.
Does this change address transgender athletes?
Essentially, no. Although the Education Department is working separately to address the issue.
In recent years, 24 states passed laws governing the eligibility of transgender students who wish to participate in school sports. Those restrictions — often focused on limiting the eligibility of transgender girls to play on women’s teams — have sparked political debate, litigation and misinformation.
Yet this recent Title IX revision does not decide the controversial issue of transgender girls and athletic eligibility.
The Education Department released a fact sheet alongside the new regulations that said that although generally preventing someone from participating in school activities consistent with their gender identity causes them “harm,” that principle has exceptions, including “sex-separate athletic teams.”
The fact sheet also clarifies that the new regulations “do not include new rules governing eligibility criteria for athletic teams.”
The Education Department is working separately on a proposal, introduced in April 2023, that would ban schools from adopting “one-size-fits-all” policies that ban transgender students from participating on teams consistent with their gender identity.
In the April 19 press release, the department clarified that the “rulemaking process is still ongoing” for the regulation regarding athletics, but that the high number of public comments (150,000) ” by law must be carefully considered.”
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