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

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

The clash over restroom policy and other elements of a federal rulemaking finalized last week could set the stage for a new wave of legal battles over how transgender children 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 Republican Party-controlled states now have laws restricting their rights. Measures include laws to keep transgender girls out of girls’ school sports, limiting the school bathrooms that transgender people can use, requiring school staff to notify parents if their student identifies as transgender at school, and banning school staff from to use transgender pronouns. student uses.

Most of these policies have been challenged in court.

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

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

The regulations, which go into effect in August, state that Title IX also prohibits discrimination on the basis of sexual orientation and gender identity.

Many Republicans say that was not the intent of the law.

The new rules also provide greater protections for students who make allegations of sexual misconduct.

At least 11 states have passed laws banning transgender girls and women from using girls’ and women’s restrooms in public schools.

The new regulation opposes this drastic policy.

It is stated that sex segregation in schools is not always illegal. However, the separation becomes a violation of Title IX’s nondiscrimination rule when it causes more than a very minor harm to a protected individual, “such as when a transgender student is denied access to a single-sex 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 court order suspending enforcement is in effect in Idaho. A ban in Utah is expected to take effect July 1.

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

The regulation appears to authorize these requirements, stating that “nothing in these final regulations shall prevent a recipient from disclosing information about a minor child to his parent, who has the legal right to receive information on his child’s behalf.”

The requirements are already law in Alabama, Arizona, Arkansas, Idaho, Indiana and North Carolina. 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, although it is not written into state law.

At least four state laws — Florida, Kentucky, Montana and North Dakota — aim to protect teachers and/or students who use the pronouns used by transgender or non-binary students from discipline.

The regulations grapple with this, stating that “harassment of a student – ​​including acts of verbal, non-verbal or physical aggression, intimidation or hostility based on the student’s non-conformity with stereotypical notions of masculinity and femininity or gender identity – constitutes discrimination can constitute sex under Title IX in certain circumstances.”

But they also emphasize that “a stray comment” does not constitute harassment and seek to protect the right to free speech.

The new rules do not specifically mention whether states can ban transgender girls from girls’ sports competitions. The Biden administration has suspended a policy that would prohibit schools from imposing an outright ban.

At least 20 states have passed state laws containing such bans in the name of preserving girls’ sports. But judges have stayed enforcement of some of them, including in a ruling last week that only applies to one teen athlete in West Virginia.

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

“They may say this doesn’t address the problem, but because of the broad language they use, the end result is that you have to allow a boy on a girls’ team,” said Matt Sharp, an attorney with Alliance Defending Freedom. misidentifying transgender girls as boys. Alliance Defending Freedom is a conservative group representing female athletes and challenging the sports participation of transgender women and girls.

“There’s a good feeling about this document that says you can’t have a rule that says, ‘If you’re transgender, you can’t participate,’” said Harper Seldin, an attorney for the American Civil Liberties Union.

Lawsuits likely.

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 illegal rules that redefine what sex really means.”

“We absolutely intend 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 past two decades, attorneys general have repeatedly sued opposing presidents over regulations and executive orders.

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

“I don’t think many states want to wait for the federal government to enforce this,” he said.

The ACLU’s Seldin said his organization will keep a close eye on how the rules play out.

“What do these laws and regulations mean for transgender youth and transgender students who are attacked in every aspect of their lives?” he asked.

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