In the week since the U.S. Department of Education finalized a rule on the rights of transgender students under Title IX, education leaders in at least five states have urged school districts to ignore it—and activist groups are pressing conservative governors to challenge the directive in federal court.
“We are very proud of our districts that are holding the line, and we will never allow Joe Biden to control our schools and indoctrinate our kids,” said Oklahoma State Superintendent Ryan Walters said at a state board meeting Thursday.
Governors and state education chiefs in Florida, Louisiana, Montana, and South Carolina have also directed districts to defy the rule and signaled potential legal challenges.
The showdown will put district leaders in those five states—and those in other states with legal restrictions on transgender students’ restroom access and pronouns—in a tough but familiar position.
If districts honor the new rule, they risk legal repercussions and political fallout from defying their states. But if they ignore the Education Department’s interpretation of federal law, they risk a civil rights investigation, which comes with the threat of lost federal funding if they cannot reach a resolution.
“It is what I call an untenable position,” said Francisco M. Negrón, Jr.the founder and CEO of K12Counsel, a school law advocacy and policy firm. “It’s clear that, in some jurisdictions at least, schools are going to have to make a decision about which set of rules to follow—with some very consequential outcomes.”
New Title IX rule carries more legal weight
Issued April 19, the Title IX rule, effective Aug. 1, echoes the Biden administration’s long-held position that the law’s prohibition on sex-based discrimination in schools includes protections for sexual orientation and gender identity. A school would violate the law if it “denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity.” It also includes directives on how K-12 schools and colleges should handle reports of sexual assault and harassment.
A separate rule related to transgender student athletes is pending.
Civil rights groups praised the rule for asserting protections that transgender students need to attend schools free from harassment and discrimination.
“Today’s rule will be life-changing for so many LGBTQ+ youth and help ensure LGBTQ+ students can receive the same educational experience as their peers: going to dances, safely using the restroom, and writing stories that tell the truth about their own lives,” said a statement from Kelley Robinson, the president of the Human Rights Campaign, an LGBTQ+ advocacy organization.
Conservative state leaders argue the rule violates parental and states’ rights and creates unsafe and uncomfortable conditions for cisgender girls who may be required to share single-sex facilities with transgender classmates.
“We will not comply,” Florida Gov. Ron DeSantis, a Republican, said in a video posted to X April 24. “We will fight back.”
Moms for Liberty, a conservative activist group, wrote a letter to Republican governors, urging them to “take any and all necessary legal measures to safeguard fundamental parental rights.”
The rule cements a position the Biden administration has held since the president’s first day in office that the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that Title VII, a law that prohibits sex discrimination in the workplace, bars unequal treatment on the basis of sexual orientation or gender identity. Biden officials argue that legal reasoning should also apply to Title IX.
Because the policy went through a formal rulemaking and public comment process, it carries more legal weight than a similar argument President Barack Obama’s administration detailed in nonbinding guidance it issued in 2016, Negrón said.
The Obama administration later sued North Carolina for passing a “bathroom bill” that violated that guidance. A federal judge later stayed that Title IX interpretation in response to a lawsuit from 13 states, and President Donald Trump’s administration eventually rescinded the Obama-era guidance.
Districts in the middle of state-federal conflict
The new rule, and states’ vows to defy it, could set up a similar legal conflict. At least 11 states have laws that restrict access to restrooms and locker rooms based on sex assigned at birth, the Associated Press reported. Legislatures have also introduced and debated bills that would prohibit schools from using students’ desired names and pronouns, and some have passed laws requiring educators to seek permission from parents or guardians before using them.
Education Department spokesperson Vanessa Harmoush said in a statement that the Title IX regulations were written following “a rigorous process to give complete effect to the Title IX statutory guarantee that no person experiences sex discrimination in federally funded education.”
“As a condition of receiving federal funds, all federally funded schools are obligated to comply with these final regulations, and we look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience,” that statement said.
It remains to be seen how aggressive the Biden administration will be about investigating violations of the law, or state directives to do so, Negrón said.
“Just because something is enforceable doesn’t mean it will be enforced,” he said.
