Biden administration rules protecting trans students take effect — but not everywhere

A controversial Biden administration regulation protecting transgender, gay and lesbian students from discrimination took effect Thursday in 24 states but remains on hold in the rest of the country amid pending litigation.

The patchwork is the result of lawsuits filed by Republican-led states across the country against the administration’s Title IX regulation, a sweeping set of rules that address how schools must enforce the law banning discrimination on the basis of sex. The regulation was issued in April and meant to be in place ahead of the new school year.

In a half-dozen separate cases, federal courts granted injunctions blocking enforcement of the regulation in 26 states, including Texas, Florida, Ohio and Alaska, while the cases are litigated. But those rulings do not affect the regulation’s status in the rest of the country - generally Democratic-leaning states such as California, New York and Illinois, as well as the District of Columbia and Puerto Rico.

Adding to the confusion: It was not immediately clear whether an appellate court decision issued late Wednesday was a national injunction or just impacted four states that are party to that case. The Justice Department said it read the ruling to apply to just four states but others were not sure.

“It’s a mess. Like honestly, it’s a complicated, constantly shifting mess,” said Jon Fansmith, senior vice president for government relations and national engagement at the American Council on Education, which represents colleges and universities. “Schools aren’t sure what their obligations are.”

On Thursday, officials at the federal Education Department said that its Office for Civil Rights would begin enforcing the new rules for schools in states without court injunctions in place. Others should continue to follow rules published in 2020 by the Trump administration, they said.

The Biden administration has asked the Supreme Court to allow the parts of the Title IX regulation that were not challenged to take effect while the cases make their way through the courts, but there was no immediate ruling from the justices.

The regulation governs how federally funded schools - which includes virtually all K-12 districts, colleges and universities - implement the Title IX law, the half-century-old law barring sex discrimination. That includes rules for how schools should handle complaints of sexual harassment and assault, which replace the version written by the Trump administration that was friendlier to the accused.

In rewriting the Title IX regulations, the Biden administration defined discrimination on the basis of sex to include discrimination on the basis of gender identity and sexual orientation. That would prohibit, for instance, schools from forcing transgender students to use bathrooms and locker rooms that do not align with their gender identity. Schools would also be required to refer to students by the pronouns they use.

That angered conservative states, who challenged the regulation in multiple lawsuits across the country. Each suit included a different combination of states.

On Wednesday, the U.S. District Court for the Western District of Oklahoma became the sixth court to issue an injunction halting enforcement of the new rules in Oklahoma. Federal Judge Jodi W. Dishman, a Trump appointee, wrote that the Education Department had no right to define “sex” as including gender identity without congressional authorization.

She said the agency was “claiming to discover, in a statute that has been enacted for over fifty years, a previously unknown power to decide how broadly ‘sex’ is defined and applied,” calling that “a decision of vast political significance.”

“In the context of Title IX, the concepts of sex and gender identity are distinct and independent of one another,” she wrote.

The ruling was welcomed by conservatives including Oklahoma Attorney General Gentner Drummond, who brought the case.

“This well-reasoned ruling helps to protect both female and male students from invasions of privacy and unnecessary harm,” he said in a statement. “Our students deserve the protections that have long been provided by Title IX.”

The Biden administration initially won the first round in one of the cases, allowing the regulation to be enforced in Alabama, Florida, Georgia and South Carolina, the states involved in that case. But the judge’s decision was overturned by an appeals court late Wednesday.

U.S. Education Secretary Miguel Cardona defended the regulation, saying it was about protecting the rights of all students.

“It’s unacceptable that any student faces discrimination or bullying simply because of who they are,” he said during a webinar Thursday for school administrators. “That’s not who we are, and that’s not what this country stands for.”

In another wrinkle, a federal judge in Kansas applied his ruling to certain schools in states beyond the suit before him. He ruled last month that the regulation cannot be enforced at more than a thousand K-12 schools and colleges attended by children of members of three groups that are fighting the regulation: Moms for Liberty, Young America’s Foundation, and Female Athletes United. Some of these schools are in states where the new rules are being blocked anyway, but hundreds are in states where they otherwise apply. In some cases, the new rules may apply in certain schools but not others in the same school district.

The legal uncertainty adds to years of whiplash on this issue for schools trying to comply with the law. Policies in place during the Obama administration were thrown out by the Trump administration, and the Trump policies were replaced by President Biden.

“Our members are absolutely freaking out,” said Brett Sokolow, chair of the Association of Title IX Administrators. He said schools were ready to shift into compliance with the new rules on Thursday, including announcements to their communities, but may not know whether to move ahead. “You’re still in a position where it’s somewhat unclear.”

The setbacks have been frustrating for advocates who have pushed for years to get these new rules on the books. Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center, said the legal upheaval has created confusion for everyone involved but wanted schools to understand they still have legal obligations.

“This does not mean schools are not still required to comply with Title IX,” she said. “Students still have protections from discrimination based on sex.”

The federal rules stand in direct contrast to laws and policies enacted by conservative states and school boards across the country that limit the rights of transgender students. For instance, more than 10 states have rules limiting use of bathrooms and facilities, according to tracking by the Movement Advancement Project. Some school boards bar students from changing their names or pronouns without parental permission or prohibit teachers from using pronouns that differ from sex assigned to the student at birth.

The Biden administration has consistently argued that Title IX’s protections extend to gender identity and sexual orientation, but the April rules were the first time the Education Department put that interpretation into a binding regulation.

The regulation cites the 2020 Supreme Court ruling in Bostock v. Clayton County, which found sex discrimination in employment includes gender identity and sexual orientation. The same logic applies to Title IX, the administration argues. The judges deciding these cases so far have rejected that argument.