The Biden administration’s new regulation seeking to protect transgender students’ rights to use school restrooms in accordance with their gender identity has sparked conflicts with Republican-controlled states that have enacted laws limiting transgender rights.
The regulation clarifies Title IX’s ban on sex discrimination to include sexual orientation and gender identity. However, several states have laws prohibiting transgender girls and women from using girls’ and women’s bathrooms at public schools. The regulation asserts that sex separation at schools is not always illegal. Still, it becomes a violation of Title IX when it causes significant harm to a protected individual, such as denying a transgender student access to a sex-separated facility consistent with their gender identity.
At least seven states have laws or policies requiring schools to notify parents if their children are transgender. The regulation seems to permit these requirements, stating that it does not prevent disclosure of information about a minor child to their parent who has the legal right to receive such disclosures.
Regarding pronoun restrictions, at least four states have laws protecting teachers and students who decline to use the pronouns that transgender or nonbinary students prefer. The new regulation acknowledges that harassing students based on their nonconformity with stereotypical gender roles can constitute discrimination. However, it also seeks to safeguard free speech rights and states that a stray remark does not constitute harassment.
The regulations do not explicitly address transgender girls’ participation in girls’ sports, but advocates on both sides believe they could apply. Some states have banned transgender girls from girls’ sports competitions, but judges have paused the enforcement of some of these bans.
In response to the regulations, several Republican state attorneys general have expressed their intent to challenge them in court, arguing that they redefine the meaning of sex and betray women’s rights. LGBTQ+ advocates maintain that the regulations are essential to protect transgender students from discrimination and harm and ensure their well-being in schools.
