New federal protections for transgender students in U.S. schools and colleges take effect Thursday, but with muted impact as judges have temporarily blocked implementation in 21 states and hundreds of individual colleges and schools across the country.
The regulation also provides protections for pregnant students with children and details how schools must respond to complaints of sexual misconduct.
For schools, the impact of the legal challenges could be a combination of confusion and inertia about compliance at the start of the school year.
“I think it’s likely that from school district to school district or state to state, we’re going to see more or less a continuation of the current status quo,” said Elana Redfield, director of federal policy at the Williams Institute at the UCLA School of Law.
Transgender rights — and especially those of youthful people — have become a key political battleground in recent years as transgender visibility has increased. Most Republican-controlled states have banned gender-affirming health care for transgender minors, and several have passed laws restricting which school bathrooms transgender people can employ and barring trans girls from some sports competitions.
In April, President Joe Biden’s administration attempted to resolve some of the disputes with an executive order protecting the rights of LGBTQ+ students under Title IX, the 1972 law against sex discrimination in schools that receive federal funds. The executive order took two years to draft and sparked 240,000 responses – a record for the Department of Education.
The rule states that it is unlawful discrimination to treat transgender students differently than their classmates, for example by restricting access to restrooms. It does not explicitly address participation in sporting events, a particularly controversial issue.
It also improves protections for pregnant students and students with children, expands the scope of sexual misconduct cases that schools must investigate, and repeals a Trump administration rule requiring schools to give defendants the opportunity to cross-examine their accusers in live hearings.
The U.S. Department of Justice has asked the Supreme Court for permission to enforce parts of the rule that have not been challenged by the states, but it is unclear when the justices will issue a decision.
Meanwhile, the enforcement of Title IX remains highly unclear.
In a series of rulings, federal courts have said the rule cannot be enforced in most of the Republican states that have sued while litigation is ongoing. In a ruling Tuesday, an Alabama judge ruled otherwise, allowing enforcement in Alabama, Florida, Georgia and South Carolina.
A federal judge from Kansas appointed by former President Donald Trump added another facet, asserting his power over Democratic-led states: He said the rule cannot be enforced at schools attended by children of Moms for Liberty members, or at colleges with members of Young America’s Foundation or Female Athletes United. That prevents the rule from taking effect at hundreds of colleges and about 1,700 schools in states where it could otherwise be enforced.
In many school districts across the country, this rule must be enforced in some schools but cannot be followed in others.
“I can’t give you many parallels between two different sets of rules that apply in the same place, when a school on one side of the street operates under different rules than a school on the other side of the street,” said Brett Sokolow, chairman of the Association of Title IX Administrators.
School administrators are frustrated with the lack of guidance from the Biden administration, he said. When the Department of Education recently sent information to schools on how to implement the modern guidelines, it found that they do not apply in many places. Sokolow said some districts may need to consider using two separate teams – one trained in the previous rules, the other in the 2024 version – to be prepared for both scenarios.
Jay Warona, deputy executive director and general counsel for the New York State School Boards Association, said his state already offers similar protections to transgender students, but not all other aspects of the modern rule are addressed in state policy.
Warona said he is getting messages from school districts that know what to do and is urging them to check with their district attorneys.
Caius Willingham, senior policy adviser at the National Center for Transgender Equality, said it was essential to note that the orders did not prevent school districts from pursuing similar policies, even though they did prohibit the government from enforcing its modern policies in some places.
Meanwhile, students are facing real consequences. Some people who are barred from using the gender-specific bathrooms hold their bladders all day, don’t drink anything or even drop out of school, he said.
“If you are not able to meaningfully participate in the education system as your true self,” says Willingham, “you will not be successful.”
For Kaemo Mainard O’Connell, a transgender and nonbinary high school student from Arkansas, the lack of federal protections seems to be a signal to encourage behaviors like deadnaming and bullying.
“This means I have to work much harder to be respected by teachers and students,” they said. “If I don’t have federal protection, it looks like my problems aren’t real problems.”
Because transgender students in Arkansas are now prohibited from using restrooms that match their gender identity, Kaemo must instead employ a single-occupancy restroom at school and must sign in and often wait before he can employ it.
Similar concerns are being expressed by families of transgender children in Utah, where lawmakers in June passed resolutions directing state officials to ignore the Title IX policy. Utah is one of the states challenging the regulations in court, but it has struggled to enforce its bathroom restrictions: A notice form for reporting potential violations has been flooded with false reports, and the state official tasked with reviewing them has made his lack of enthusiasm clear.
“The bathroom law led to uncomfortable conversations and definitely made our child feel different,” said Grace Cooper, a Utah mother whose child is nonbinary. “It also brought many allies out of nowhere, but without federal protection, my worries as a mother are ever-present.”
