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

By GEOFF MULVIHILL
Associated Press

A new rule from President Joe Biden’s administration blocking blanket policies to keep transgender students from using school bathrooms that align with their gender identity could conflict with laws in Republican-controlled states.

The clash over bathroom policy and other elements of a federal regulation finalized last week could set the stage for another wave of legal battles over how transgender kids should be treated in the U.S.

In recent years, transgender people have gained visibility and acceptance in the U.S. – and some conservative officials have pushed back.

Most GOP-controlled states now have laws reining in their rights. Measures include laws to keep transgender girls out of girls school sports, limiting which school bathrooms transgender people can use, requiring school staff to notify parents if their student identifies in school as transgender, and barring school staff from being required to use the pronouns a transgender student uses.

Most of those policies have been challenged in court.

Here’s a look at the new regulation, the states’ laws and what could happen next.

WHAT’S THE HEART OF THE REGULATION?

The 1,577-page regulation finalized last week seeks to clarify Title IX, the 1972 sex discrimination law originally passed to address women’s rights and applies to schools and colleges that receive federal money.

The regulations, which are to take effect in August, spell out that Title IX bars discrimination based on sexual orientation and gender identity, too.

Many Republicans say this wasn’t the intent of the law.

The new rules also provide more protections to students who make accusations of sexual misconduct.

RULE CONTRADICTS BATHROOM LAWS

At least 11 states have adopted laws barring transgender girls and women from using girls’ and women’s bathrooms at public schools.

The new regulation opposes those sweeping policies.

It states that sex separation at schools isn’t always unlawful. However, the separation becomes a violation of Title IX’s nondiscrimination rule when it causes more than a very minor harm on a protected individual, “such as when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity.”

The laws are in effect in Alabama, Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma and Tennessee. A judge’s order putting enforcement on hold is in place in Idaho. A prohibition in Utah is scheduled to take effect July 1.

RULE ALLOWS PARENTAL NOTIFICATION REQUIREMENTS

At least seven states have laws or other policies calling for schools to notify parents if their children are transgender.

The regulation seems to authorize those requirements, stating 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.”

The requirements are already law in Alabama, Arizona, Arkansas, Idaho, Indiana and North Carolina. The Arizona law requires schools to provide information to parents but does not specifically include details about students’ gender expression or sexuality. Virginia asked schools to provide guidance to the state’s school districts to adopt similar policies, though they’re not written into state law.

ARE PRONOUN RESTRICTIONS LEGAL? IT DEPENDS

At least four states laws — Florida, Kentucky, Montana and North Dakota — intended to protect from discipline teachers and/or students who won’t use the pronouns transgender or nonbinary students use.

The regulations wrestle with this, finding 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.”

But they also spell out that “a stray remark” does not constitute harassment and seek to protect the right of free speech.

THE BIG DEBATE: SPORTS PARTICIPATION

The new rules don’t specifically mention whether states can ban transgender girls from girls sports competitions. The Biden administration has put on hold a policy that would forbid schools from having outright bans.

State laws that contain such bans have been adopted in at least two dozen states in the name of preserving girls sports. But judges have paused enforcement of some of them, including in a ruling last week that applies only to one teenage athlete in West Virginia.

While the new rules are not specific to sports participation, advocates on both sides believe they could apply.

“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,” said Matt Sharp, a lawyer with Alliance Defending Freedom, falsely identifying transgender girls as boys. Alliance Defending Freedom is a conservative group that has represented female athletes challenging sports participation by transgender women and girls.

“This document gives a good sense that says you can’t have a rule that says, ‘If you’re transgender, you can’t participate,’” said Harper Seldin, an American Civil Liberties Union lawyer.

WHAT HAPPENS NOW?

Lawsuits, probably.

After the rules were unveiled last week, Tennessee Attorney General Jonathan Skrmetti posted on X that “TN is prepared to defend Title IX & protect against unlawful regulations that redefine what sex really means.”

“We absolutely plan to challenge this betrayal of women in court,” Florida Attorney General Ashley Moody said in a statement Monday.

Oklahoma Attorney General Gentner Drummond submitted comments critical of the rule before it was finalized.

Over the last two decades, attorneys general have frequently sued the opposing party’s president over rules and executive orders.

Sharp of Alliance Defending Freedom said his group is still dissecting the federal rules but does represent groups that could be affected, including female athletes and religious schools and could sue over aspects of the rules. He expects states to do the same thing.

“I don’t think a lot of states want to wait until the federal government enforces this,” he said.

The ACLU’s Seldin said his organization will watch carefully how the rules play out.

“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.

___ Associated Press reporter Brendan Farrington in Tallahassee, Florida; Jonathan Mattise in Nashville, Tennessee; and Sean Murphy in Oklahoma City contributed to this article.