New federal rule bars transgender school bathroom bans, but it likely isn’t the final word

Biden’s administration

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President Joe Biden’s administration introduced a new regulation that prohibits blanket policies preventing transgender students from using school bathrooms corresponding to their gender identity.

Republicans

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However, this rule may clash with legislation in states controlled by Republicans.

Conflict

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The potential conflict over bathroom policies and other aspects of the federal regulation finalized recently could lead to a fresh round of legal disputes concerning the treatment of transgender youth in the United States.

Visibility and acceptance

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While transgender individuals have made strides in visibility and acceptance in the country, some conservative officials have resisted these changes.

Majority

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A majority of states under GOP control have implemented laws curtailing the rights of transgender individuals. Many of these policies have been contested in legal proceedings. Now, let’s explore the recent regulation, the state laws, and the possible implications.

Title IX

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The comprehensive 1,577-page regulation, which was recently sanctioned, is intended to offer clarification on Title IX, the law enacted in 1972 to combat sex discrimination and safeguard women’s rights. This law is applicable to educational establishments that receive federal funding.

August

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Set to come into effect in August, the regulations explicitly state that Title IX prohibits discrimination based on sexual orientation and gender identity. Numerous Republicans argue that this was not the original purpose of the law. Additionally, the new regulations offer increased safeguards for students who report incidents of sexual misconduct.

Prohibits

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Eleven states have implemented legislation that prohibits transgender girls and women from using bathrooms designated for girls and women in public schools. The recent regulation stands in opposition to these broad policies.

Gender segregation

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The regulation clarifies that gender segregation in schools may not always be considered illegal. However, when this separation results in more than minimal harm to a protected individual, it violates Title IX’s nondiscrimination principle “such as when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity.”

Several states

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The regulations are currently active in several states including Alabama, Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma, and Tennessee. In Idaho, enforcement has been temporarily halted by a judge’s order. Utah’s prohibition is set to be implemented on July 1.

Enacted laws

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Moreover, at least seven states have enacted laws or policies that require schools to inform parents if their children identify as transgender. The regulation appears to approve of those stipulations, indicating that “nothing in these final regulations prevents a recipient from disclosing information about a minor child to their parent who has the legal right to receive disclosures on behalf of their child.”

Gender identity

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These mandates are currently established as law in Alabama, Arizona, Arkansas, Idaho, Indiana, and North Carolina. The Arizona legislation mandates schools to furnish information to parents but does not explicitly address students’ gender identity or sexual orientation. In Virginia, schools are encouraged to offer guidance to school districts to implement comparable policies, even though they are not formally incorporated into state law.

Four states

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Furthermore, at least four states – Florida, Kentucky, Montana, and North Dakota – have enacted laws aimed at safeguarding teachers and/or students from disciplinary actions for refusing to use the preferred pronouns of transgender or nonbinary students.

Regulations

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The regulations grapple with this issue, determining that “harassing a student — including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on the student’s nonconformity with stereotypical notions of masculinity and femininity or gender identity — can constitute discrimination on the basis of sex under Title IX in certain circumstances.”

Stray remark

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However, they also specify that “a stray remark” does not qualify as harassment and aim to safeguard the freedom of speech. The updated regulations do not explicitly address the issue of whether states can prohibit transgender girls from participating in girls’ sports competitions. The Biden administration has suspended a policy that would prevent schools from implementing complete bans.

Protecting

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Several states have passed laws with such bans in the interest of protecting girls’ sports, but some of them have been put on hold by judges. This includes a recent ruling in West Virginia that only affects one teenage athlete. Although the new rules do not focus solely on sports involvement, supporters on both sides argue that they could be applicable in this context.

Girls team

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“They may be saying that this doesn’t address it, but through the broad language they’re using, the ultimate result is you have to allow a boy on a girls team,” according to Matt Sharp, an attorney at Alliance Defending Freedom, who inaccurately labels transgender girls as boys, the conservative organization has advocated for female athletes contesting the inclusion of transgender women and girls in sports competitions.

Can’t participate

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“This document gives a good sense that says you can’t have a rule that says, ‘If you’re transgender, you can’t participate,’” stated Harper Seldin, a lawyer from the American Civil Liberties Union (ACLU). Legal actions, most likely.

Jonathan Skrmetti

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Following the introduction of the regulations last week, Tennessee Attorney General Jonathan Skrmetti shared on X that “TN is prepared to defend Title IX & protect against unlawful regulations that redefine what sex really means.”

Betrayal

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In a statement on Monday, Florida Attorney General Ashley Moody expressed “We absolutely plan to challenge this betrayal of women in court.” Before the rule was officially approved, Oklahoma Attorney General Gentner Drummond provided negative feedback on the regulation. In the past twenty years, attorneys general have often taken legal action against the president from the opposing party regarding rules and executive orders.

Federal regulations

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Matt Sharp from Alliance Defending Freedom mentioned that his organization is currently analyzing the federal regulations and represents entities that may be impacted, such as female athletes and religious schools. They are considering the possibility of filing lawsuits over certain aspects of the rules. Sharp anticipates that states will also take similar actions.

Federal government

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“I don’t think a lot of states want to wait until the federal government enforces this,” he said. Seldin from the ACLU mentioned that their organization will closely monitor the implementation and impact of the rules. “What do theses laws and regulations mean in terms of transgender youth and transgender students who find themselves attacked in every aspect of their lives?” he asked.