New federal protections for transgender students at US schools and colleges will take effect Thursday as judges temporarily blocked implementation at hundreds of private colleges and schools in 21 states and across the country.
The regulation also adds protections for pregnant students and students who are parents, and details how schools must respond to complaints of sexual misconduct.
For schools, the impact of the lawsuits can be a combination of confusion and inertia in terms of compliance once the school year begins.
“I think it’s likely that from school to school or state to state, we’re going to see more or less the continuation of the status quo,” said Elana Redfield, director of federal policy at the Williams Institute at UCLA School of Law.
The rights of transgender people, and especially young people, have become a major political battleground in recent years with the rise of trans visibility. Most Republican-controlled states have banned gender-affirming health care for transgender minors, and some have adopted policies limiting which school bathrooms trans people can use and banning trans girls from participating in some sports.
In April, President Joe Biden’s administration sought to address some of the controversy with legislation to protect the rights of LGBTQ students. Title IX, a 1972 law against sex discrimination in schools receiving federal money. It was the rule two years in preparation and garnered 240,000 responses – a record for the Department of Education.
The rule declares that treating transgender students differently than their classmates, including restricting bathroom access, is illegal discrimination. It clearly does not appeal participation in sportsa particularly controversial topic.
It also strengthens protections for students who are pregnant or have children, expands the scope of sexual misconduct cases that schools must investigate, and repeals a Trump administration rule requiring schools to cross-examine their accusers in live hearings.
The U.S. Justice Department has asked the Supreme Court for permission to enforce parts of the rule not challenged by states, but it’s unclear when the justices might rule.
Meanwhile, Title IX enforcement remains deeply troubling.
One series of decisionsfederal courts have declared the rule unenforceable Most Republican states sued while the trial is pending. In a ruling Tuesday, an Alabama judge went the other way, allowing proceedings to begin in Alabama, Florida, Georgia and South Carolina.
A The Kansas-based federal judge was appointed by former President Donald Trump He added another wrinkle in asserting power over Democratic-led states: He said the rule could not be enforced at schools attended by the children of Moms for Freedom members or at colleges that are members of the Young America Foundation or United States of Female Athletes. That prevents the regulation from taking effect at hundreds of colleges and about 1,700 schools in states where it would otherwise apply.
In many school districts across the country, the rule must be enforced in some schools and not in others.
“There aren’t many parallels I can give you of two different sets of rules being enforced in the same place, a school on one side of the street operating from a different playbook than a school on the other side of the street.” IX Administrators Association President Brett Sokolow said.
According to him, administrators were disappointed by the lack of leadership of the Biden administration. Recently, when the Department of Education sent information to schools about the implementation of the new policy, it noted that in many places it was not implemented. Some districts may need to consider having two separate teams — one trained under the previous rules and one trained under the 2024 version — to prepare for both scenarios, Sokolow said.
Jay Warona, deputy executive director and general counsel of the New York State School Association, said his state already offers some similar protections to transgender students, but all other components of the new regulation are not covered by state policy.
Warona said he has fielded messages from school districts about what to do, telling them to contact district attorneys.
Caius Willingham, senior policy attorney at the National Center for Transgender Equality, said it’s important to note that even if the orders prevent the federal government from enforcing its new rules in some places, they don’t prevent school districts from having similar policies.
Meanwhile, students face real consequences. Some people are banned from using the toilet of their gender, hold their bladder all day, avoid urinating or even skip school.
“If you can’t meaningfully participate in educational systems as your authentic self,” Willingham said, “you can’t thrive.”
For Kaemo Maynard O’Connell, a transgender and non-binary high school student in Arkansas, the lack of federal protections appears to be a signal to encourage behaviors such as deadly name-calling and bullying.
“This means I will have to work harder to be respected by teachers and students,” they said. “The lack of federal protection makes it seem like my problems aren’t real problems.”
Since Arkansas now prohibits transgender students from using the bathroom that matches their gender identity, Kaemo instead uses a single-person restroom at school, and is often required to wait before entering and using it.
Similar concerns are shared by families of transgender children in Utah, where lawmakers passed resolutions in June instructing state employees to ignore the Title IX directive. Utah is among the states that have challenged the rules in court, but have struggled to enforce them her bathroom restrictions in the meantime: Filled out the information form to report possible violations false representationsand the civil servant tasked with sifting through them expressed reluctance.
“The bathroom law caused uncomfortable conversations and made our child feel different,” said Utah mom Grace Cooper. “It also brought a lot of allies out of the woodwork, but without federal protections, my concerns as a mother are always there.”