Austin American-Statesman

New Title IX LGBTQ+ rules draw mixed reviews

- Grace Abels

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 machinesha­ken 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 “officially 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 sexbased discrimina­tion in federally funded schools. The law applies to admissions, classrooms and protecting students against sexual harassment, but it is bestknown 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 after 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” on April 19.

The new “rule” made changes to several policies on sexual misconduct investigat­ions, such as expanding the definition of sexual harassment. But much of the attention has been on how this will affect LGBTQ+ students.

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 fired 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.

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, the 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?

The regulation­s will take effect Aug. 1. LGBTQ+ students will now be able to turn to Title IX protection­s when they think 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.

“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 Buffalo.

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 are likely to spark 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 not to alter any policy and suggested plans to challenge the regulation­s in court.

Does this change address transgende­r athletes?

Essentiall­y, no, although the Education Department is working separately to address the issue.

The Education Department released a fact sheet alongside the new regulation­s that said that although generally preventing people from participat­ing in school activities consistent with their gender identity causes them “harm,” that principle has exceptions, including “sexseparat­e athletic teams.”

The Education Department is working separately on a proposal, introduced in April 2023, that would ban schools from adopting “one-size-fits-all” policies that ban transgende­r students from participat­ing on teams consistent with their gender identity.

In the April 19 release, the department clarified 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.”

Newspapers in English

Newspapers from United States