National Center for Transgender Equality Responds to New Title IX Protections

On Friday, April 19, the Biden-Harris administration released new rules for enforcing Title IX, the landmark law that protects students from discrimination based on sex. Over the last five decades, Title IX has helped generations of students access the educational opportunities that they deserve – and which were long denied to women and the broader LGBTQI+ community. But despite these strides, far too many students - including transgender students - remain unsafe and unsupported at their schools just because of who they are. 

These new regulations are a major step forward for the ability of all students to thrive at school– and they’re desperately needed.

Over the past five years, an ever-increasing tide of anti-LGBTQI+ legislation has been introduced in statehouses around the country, with each year exceeding the last in sheer number of pieces of hostile legislation introduced.

The overwhelming majority of these bills are targeted squarely at transgender and nonbinary youth. Whether limiting their access to medical care, attempting to silence and erase them in their schools, or threatening the parents who are supporting them, anti-trans extremists in political office have made it a key part of their agenda to push trans youth out of public life and make it seem like they have no place in their communities.

With these regulations, the Biden-Harris administration takes an important step toward pushing back on these attacks. These new rules make it clear that the general provisions of Title IX prohibiting discrimination on the basis of sex protect trans youth from harassment and discrimination in education because, as the Supreme Court stated four years ago in Bostock v. Clayton County, it is impossible to discriminate against a person because of their sexual orientation or gender identity without discriminating against them based on sex. 
 

The regulation makes it clear that the general provisions of Title IX also protect gender-nonconforming and intersex students from harassment and discrimination.

• This means that trans students may not be barred from any covered educational programs on account of their gender.
• This means that trans students may not be denied access to restrooms, locker rooms, and showers consistent with their gender. 
• This means dress codes may not be applied against trans students in a discriminatory manner. 
• This means trans students may not be subjected to invasive examinations to prove their gender.

This is a bold, and important, statement, that transgender and nonbinary students belong in their schools and communities.

Unfortunately, there are a few remaining ambiguities to these regulations. For instance, while harassment on the basis of sex is prohibited, misgendering, deadnaming, and other specific forms of harassment faced by trans students in particular are to be treated on a case-by-case basis. Trans students shouldn’t let this ambiguity deter them from objecting to a pattern or policy of being misgendered, deadnamed, or otherwise mistreated on account of their gender, however – these can definitely constitute harassment on the basis of sex, and therefore are covered by these Title IX regulations.

In addition, the department has declined to include explicit protections to ensure trans students have access to safe and appropriate housing consistent with their gender. The text of Title IX makes an exception allowing “sex-segregated” housing, but it does not require it - and schools are free to implement policies that are inclusive of and welcoming to transgender and nonbinary students.

And finally, none of the provisions in this regulation apply to athletic programs. The existing 2020 rules on athletics, including gym classes, intramural/club sports, and interscholastic sports, still stand. The Biden-Harris administration held a separate rulemaking process for these rules, and we hope to see that still later this year.

The campaign of exclusion against trans youth nationwide has focused on pushing trans youth out of gym classes and sports teams consistent with their gender. The message we’re hearing from trans children of all ages is clear: “Let us play.” We urge the administration to move quickly to finalize their athletics rules to make it clear that, in communities nationwide, trans children belong.