The Washington Post recently reported that new proposed Title IX language referencing transgender students should be expected from the Department of Education (the Department) this month. The reported proposed regulations will include this provision:
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.
The Department provides clear protections against discrimination based on gender identity, among other qualities related to one’s sex within the statement. If adopted, such protections would apply to anyone participating in, or attempting to participate in, an educational program or activity receiving federal funding assistance and would preclude any program from excluding a student based on their gender identity.
The proposed additions come after the Department stated in June 2021 that it would enforce Title IX to protect LGBTQ+ students from “all forms of sex discrimination.” It issued a Notice of Interpretation reiterating that the Department considered gender identity to already be covered by the existing rules, citing Bostock v. Clayton County, the 2020 Supreme Court decision that found discrimination based on sexual orientation or gender identity is inherently “on the basis of sex.” This action led twenty states’ attorney generals to file suit against the Department, claiming the change to Title IX enforcement is a local issue, or at a minimum, requires public input. The forthcoming proposed regulation will satisfy the latter point, opening the new languageAll Posts up for comment before adoption and implementation. Local leaders opposed to federal policies regarding discrimination in schools have long argued for local or state control.
Practically speaking, the new Title IX rule will largely impact school sports. All public schools and universities, and most private universities, receive federal funds and are required to comply with Title IX protections. If adopted, schools would be prohibited from excluding transgender students from their chosen sports on the basis of their gender identities. If a school were to continue to exclude a student on such a basis, it would risk losing federal funding altogether.
This additional push to protect transgender students comes after many states have recently passed laws banning transgender girls and women from participating in girls’ and women’s sports. Such laws are at odds with the Department’s actions and could lead to schools flouting state laws to keep their federal funding.
The National Collegiate Athletic Association (NCAA) has spoken out against the state-level bans on transgender athletes. In April 2021, NCAA President Mark A. Emmert affirmed the NCAA’s position to support transgender student-athletes and noted that NCAA “championship host sites [must] demonstrate how they will provide an environment that is safe, healthy, and free of discrimination.” Similar statements made since then suggest that future events will not be scheduled in states with transgender athlete bans in place.
Perhaps most visible in recent coverage of the conflict over transgender athletes is Penn swimmer Lia Thomas. Thomas, a transgender woman, won the 500-yard freestyle at the Division I national championship in March 2022. Though Thomas seldom agrees to be interviewed, it has not prevented her from becoming a central figure in arguments around the issue, even gaining mention during the confirmation hearings of Judge Ketanji Brown Jackson to the Supreme Court.
Recently, the NCAA stated that it plans to implement rules for transgender athletes consistent with the rules used by the Olympics. However, it is unclear whether such rules will comply with the new Title IX language.
While it is unknown exactly what the new additions to Title IX will be once finalized, especially after public comment, there is certain to be much litigation as state laws continue to clash with the federal government.