The Biden administration's rules that prohibit discrimination against gays, lesbians, and transgender students went into effect on Thursday in 24 states. But litigation in the other 26 states has put the implementation of those rulers on hold.
The new Title IX regulations that tell schools how to ban discrimination based on sex were issued in April. Predictably, blue states are seeing the regulations implemented while red states are fighting them.
An appellate court issued an injunction on Wednesday in a case brought by four states. But it's unclear whether or not that injunction is a nationwide ban or not.
“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.”
What kind of a mess? The Education Department's Office of Civil Rights will begin enforcing the new rules in states where they aren't being litigated. Other states will continue to follow the 2020 rules published under the Trump administration.
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.
On Wednesday, the U.S. District Court for the Western District of Oklahoma issued an injunction to halt the enforcement of the new rules. Federal Judge Jodi W. Dishman, who was appointed by Donald Trump, wrote that the Education Department did not possess the authority to define “sex” to include gender identity without the approval of Congress.
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. And yet the radicals in the Education Department have decided that they are not independent of one another and can be combined to achieve the ends of "protecting" transgender students.
U.S. Education Secretary Miguel Cardona defended the regulation, saying that it was about protecting the rights of all students and that enacting the regulation would stop the bullying of kids.
“It’s unacceptable that any student faces discrimination or bullying simply because of who they are,” he said during a webinar Thursday. “That’s not who we are, and that’s not what this country stands for.”
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.”
One easy fix would be to stop playing politics with the issue. That might be difficult for the activists who want to punish men or pretend that boys are girls. But it would certainly be less of a bother for schools that have to change their enforcement policies every four years.
