A Texas federal judge blocked the Biden administration’s efforts to extend federal anti-discrimination protections to LGBTQ+ students.

In his ruling Tuesday, Judge Reed O’Connor said the Biden administration lacked the authority to make the changes and accused it of pushing “an agenda wholly divorced from the text, structure, and contemporary context of Title IX.” Title IX is the 1972 law that prohibits discrimination based on sex in educational settings.

“To allow [the Biden administration’s] unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress,” wrote O’Connor, a President George W. Bush appointee. “That is not how our democratic system functions.”

The Biden administration’s new guidelines, issued in April, expanded Title IX to ban discrimination based on sexual orientation and gender identity. The changes would make schools and universities responsible for investigating a wider range of discrimination complaints. The rule changes came as several states, including Texas, have approved laws in recent years barring transgender student-athletes from participating in sports teams that correspond to their gender identity. The Biden administration hasn’t clarified whether the new guidance would apply in those cases.

Texas and several other states have the Biden administration over the new rule. . A month after the guidelines were released, Gov. called on school districts and universities .

“Threatening to withhold education funding by forcing states to accept ‘transgender’ policies that put women in danger was plainly illegal,” said Texas Attorney General in a statement applauding Tuesday’s ruling. “Texas has prevailed on behalf of the entire Nation.”

An U.S. Education Department said in a statement it stands by its revised guidelines.

“Every student deserves the right to feel safe in school,” the statement reads.

This article originally appeared in at . The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at .

The new Title IX rule, which goes into effect Aug. 1, requires districts to promptly investigate complaints, even if they occur off school grounds, and to extend those protections to LGBTQ students. Districts must also train school employees about their obligations to address sex discrimination.

”These regulations make crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” said Education Secretary Miguel Cardona. “Title IX’s prohibition of sex discrimination includes all forms of sex discrimination. No one should have to give up their dreams of attending or finishing school because they’re pregnant. No one should face bullying or discrimination just because of who they are or who they love.”

Left unresolved, however, is a second, and more controversial, rule that applies to transgender students’ participation in school sports, which some observers speculate the administration is until after the election.

That did not dampen partisan objections to what they did include, which is expected to fuel a new wave of litigation. Republican Rep. Virginia Foxx, who chairs the House education committee, questioned the inclusion of transgender students under Title IX and said the rewrite rolls back protections for women.

“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” she said in a statement. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide.”

President Joe Biden pledged to overhaul Title IX even before he won the 2020 election, when he said that prevents discrimination against LGBTQ employees on the job guarantees students the same protections at school. But it took over two years for the department to release an initial draft describing its new approach. A proposed rule concerning trans students’ participation in sports followed in early 2023, but has yet to be sent to the White House for final review.

Officials have attributed the delays on both rules to the hundreds of thousands of comments it received from the public. But there’s also been intense backlash from Republicans, who say allowing transgender women to compete on teams consistent with their gender identity upends the original goal of Title IX. 

Advocates and in Congress argued the delay left victims at risk and discouraged some students from reporting incidents because they thought schools wouldn’t respond.

“For many students, a weakened Title IX harassment rule is all they’ve known through their college and high school experience,” said Shiwali Patel, a senior counsel at the National Women’s Law Center. “Extremist politicians have increasingly attacked the rights of LGBTQI+ students, especially, transgender, nonbinary, and intersex students, attempting to codify discrimination through legislation and other policies.”  

On Friday, advocates welcomed the end of this first phase. Even so, many school districts might not be prepared to take the proactive approach that the rule requires. 

“It’s jaw-dropping to see things are still lax and so backwards,” said Sandra Hodgin, founder and CEO of Title IX Consulting Group, a Los Angeles-based firm. Some districts, she said, have outdated policies or don’t inform students how to file a grievance.��

Districts will have to act fast, she said, to ensure they have a Title IX coordinator who is up to speed on the new requirements and can “help them navigate all of it.” She noted a that found Liberty University, a Christian college, discouraged students from reporting sexual violence. “K-12 systems are going to be looking at things like that and hopefully say to themselves, ‘We don’t want to be that example.’ ”

In addition to requiring districts to promptly investigate any “sex-based hostile environment” in education programs both in and outside of school, the revised rule also removes the requirement for live hearings with cross-examination for sexual misconduct investigations. Former Education Secretary Betsy DeVos added to protect the due process rights of male students who argued they’d been unfairly accused of harassment or misconduct. 

Catherine Lhamon, assistant secretary of education for civil rights, dismissively noted the 2020 rule required schools to be “no more than not deliberately indifferent” to harassment.

The Biden administration has expected districts to comply with its applying Title IX protections to LGBTQ students even as Republican states filed litigation challenging that interpretation. Twenty-two states sued in 2022 over guidance from the U.S. Department of Agriculture, which oversees school nutrition, stating that programs receiving federal funds must follow or risk being reported to the Department of Justice. 

Max Eden, a research fellow at the conservative American Enterprise Institute, said he expects “lawsuits from state attorneys general within days, or at longest weeks.” Some, he said, will challenge the administration’s decision to extend Title IX’s protections to include gender identity.  the rule could violate free speech if an offensive comment or a teacher’s refusal to use a preferred pronoun, for example, is perceived as discrimination. In a Thursday call with reporters, a senior administration official said if such a situation “limits or denies [a student’s] access to education,” the person’s behavior could create a hostile environment.

Sasha Buchert, a senior attorney for Lambda Legal, an LGBTQ advocacy organization, however, said fear of litigation shouldn’t prevent school officials from following the law.

“If I was their council, I would remind them that they’re on the wrong side of the law if they decide to discriminate against LGBTQ students,” she said. “If you want to protect your school against liability, the smart thing to do would be to not choose to discriminate.” 

In a decision this week, a federal appeals court agreed with the Biden administration’s interpretation that Title IX protections for LGBTQ students can apply to athletics. The U.S. Court of Appeals for the Fourth Circuit blocked West Virginia’s law banning trans students from playing on teams consistent with their gender identity.

focuses on Becky Pepper Jackson, a 13-year-old transgender girl and middle school track athlete, who has identified as a girl since third grade. 

Last year, West Virginia Attorney General Patrick Morrissey asked the U.S. Supreme Court to allow the state’s Save Women’s Sports Act to go into effect, but the court put it on hold. Buchert said she wouldn’t be surprised if Morrissey appeals the Fourth Circuit ruling as well.

In its Title IX draft for sports, the education department attempted to carve out a compromise, avoiding an across-the-board inclusion of trans students on teams consistent with their gender identity. But it didn’t also didn’t ban such policies outright. The draft states that schools and colleges could limit transgender students’ participation in specific sports — particularly at the more competitive high school and college levels. But in the elementary grades, and likely into middle school, most students would be able to play sports consistent with their gender identity.

Buckert said advocates hope the department will “issue a strong rule that provides clarity about where the department stands on those issues.”

, the Republican presidential nominee, has said he won’t “allow men in women’s sports.” If he wins, some observers wouldn’t be surprised to see him rescind any attempt by the Biden administration to allow trans students to compete in sports consistent with their gender identity. 

“We’re looking at a very polarized Title IX conversation,” she said.

The researchers — “Team TALKS” — are interested in hearing from participants who are passionate about creating schools free of sexual misconduct and would like to share their experiences and insights. They will take part in one 75-minute to share their insights, hear from peers and colleagues, and learn about researchers’ findings and recommendations. 

Team TALKS wrote to Stop Sexual Assault in Schools — which is collaborating on the research — that “a deeply concerning issue persists and negatively affects the lives of countless young people: peer-to-peer sexual harassment and assault. School administrators and Title IX coordinators are critical in creating a sustainable change that reduces sexual harassment and assault among students in school.” They aim to understand school administrators’ needs in “preventing, investigating and processing incidences of sexual misconduct.”

Obstacles to making sustainable change stem from “the lack of resources to support Title IX compliance, including for Title IX coordinators, who are responsible for ensuring schools are complying with Title IX and responding appropriately to sex discrimination, including sexual harassment,” Shiwali Patel, director of justice for student survivors and senior counsel at the National Women’s Law Center, noted in correspondence with Stop Sexual Assault in Schools.

Beyond Title IX compliance, administrators must also learn to address the many underlying factors that contribute to persistent sexual harassment in schools: inconsistent training, underreporting, poor recordkeeping of incidents and ongoing hostile climates for LGBTQ and other vulnerable students. 

The university researchers are collaborating with the national nonprofit , which educates schools, students and families about the right to an equal education free from sexual harassment and assault. The nonprofit will make the researchers’ data and recommendations freely available to schools, gender-equity organizations and others to shape new resources and legislative initiatives.

Stop Sexual Assault in Schools board chair Heidi Goldstein, a long-time advocate for gender equity in the Berkeley Unified School District and consultant to other school districts in Alameda County, California, underscores the importance of this project:

“This research is immensely valuable because there is very little data around how K-12 school districts set up their nondiscrimination and compliance offices, or clarity around the kinds of supports districts need to effectively manage these issues. Especially in times of lean funding, districts are searching for guidance on how to train staff to comply with state and federal nondiscrimination regulations, while facilitating coordination across departments tasked with student culture, discipline, special services and stakeholder communications when incidents arise. 

“The insights from the Team TALKS work will help K-12 districts more effectively manage their nondiscrimination infrastructure by identifying areas of targeted investments for staff, tools, training and student culture programs to improve their ability to prevent, manage and resolve incidents.”

The study is particularly timely with new federal Title IX regulations expected to be in March. Participants’ contributions will help define concrete needs and remedies that districts can use to improve their procedures and sexual misconduct responses. 

School administrators and Title IX coordinators who are interested in participating in a focus group can sign up .

In a federal court motion filed Nov. 14 that cited The 74’s exclusive reporting, attorney Andrew Brenner described the disclosure as “at best, careless,” particularly after the former student won a legal battle against the district for her right to remain anonymous. Brenner asked the U.S. District Court for the Eastern District of Virginia to compel Fairfax to explain how her name ended up in documents released as part of a records request that had nothing to do with her case.

A hearing on the motion is set for Dec. 15.

Known as B.R., the woman is as well as the former students she alleges sexually assaulted her in 2011, with a trial set to begin in March. The motion asks for the names of all district employees involved in producing the materials that identified her as well as the district’s steps “to collect, review, compile and transmit the documents” prior to their release.

The district’s response to the motion could provide insight into how unredacted records on tens of thousands of students were released to a parent and special education advocate. The documents included sensitive, confidential information such as grades, disability status and mental health conditions.

Following The 74’s report, the district apologized and launched an investigation. A firm with expertise in cybersecurity — — is handling the probe, but some parents with children named in the disclosure said so far, no one has contacted them. Superintendent Michelle Reid said in she will share a summary of the investigation once it’s complete.

Callie Oettinger, the parent who received the records, went to her local high school in mid-October to examine what she thought were records pertaining to her own two children. Her son, who received special education services in the district, has since graduated, and her daughter is still in high school. She copied computer files onto thumb drives as a paralegal observed and helped her identify some of the records. 

While most of the documents set aside for her review included her children’s names, they also revealed information on what she estimates were at least 35,000 other students. B.R.’s full name was listed in a document labeled “attorney work product” and marked “privileged and confidential,” as well as in an email to board members about litigation to discuss in a 2020 closed meeting.

The records also identified another former student with a separate Title IX case against the district. In reached last year, the district agreed to always redact the student’s real name from any copy of the document and only use a pseudonym when referring to the case. Her attorneys did not respond to a request for comment.

The day after issuing its apology, the district sent Oettinger a strongly worded email demanding that she “return all files removed, including any and all physical media used for unauthorized extraction of information from FCPS.” The letter referred to the documents as “wrongfully retained information.”

To her attorney, the language suggested Oettinger was at fault. 

“She’s done nothing illegal, and they have no legal right to compel her to do anything,” said Timothy Sandefur, vice president for legal affairs at the Goldwater Institute, a Phoenix-based libertarian think tank. Oettinger posted redacted documents from the recent trove on she runs on special education issues. “If they want assurance that she is not going to publish any kind of confidential information about kids, she absolutely will not publish confidential information about children. She has assured everybody of that already.”

Oettinger sent the thumb drives to Sandefur, who has since communicated with attorneys conducting the district’s investigation. But he declined to provide an update on the district’s progress. The attorneys conducting the investigation also didn’t respond to requests for comment.

A need for ‘robust action’

Oettinger didn’t initially alert the district to the disclosure because, she said, it has failed to make improvements after previous privacy violations. In fact, on Oct. 19 — the third and final day that Oettinger reviewed files in person — the Virginia Department of Education responded to one of her earlier complaints, finding the Fairfax district out of compliance with the federal Family Educational Rights and Privacy Act, or FERPA.

The decision only pertained to her son and was not a statement about the district’s overall privacy record.

Patricia Haymes, who directs the state agency’s Office of Dispute Resolution and Administrative Services, noted that officials have had “ongoing concerns” regarding student confidentiality in Fairfax and “believed that there was a need for the school division to take more robust action to ensure sustainable compliance.” But she also said the district assured her in September that it was taking steps “regarding the confidentiality of and access to student records.”

In that Sept. 27 letter, the district said it was training staff on their obligations under FERPA and the Freedom of Information Act, and was planning a “mandatory training” for principals and other administrators in charge of student records and special education. Training was scheduled to begin Oct. 31 and employees have two months to complete it. 

On. Nov. 8, Oettinger appealed the state’s decision, citing The 74’s reporting on the accidental records release. Both the district and the state have “failed to ensure compliance — and now here we are,” she wrote. “You have enough for [the district] to be found at fault for systemic noncompliance.” 

The district disputes that it has violated the law. In a Nov. 21 response to Oettinger’s appeal, it described the disclosure as a “single instance of what appears to be human error” and said that Oettinger’s in-person review of the documents, which FERPA allows, was “outside the typical electronic document production that FCPS employs.“

Oettinger said she has faith in Reid, who became superintendent last year, to push for tighter security.  The two have exchanged emails and met in person multiple times. Oettinger said she’s “choosing to believe Reid’s trying to change the district’s culture and that she knows me enough to know I’d never do anything nefarious.”

Some special education experts in the state are baffled by the district’s mistake. 

“It’s just the norm that when you do a document production, you are careful about what you shouldn’t be disclosing — whether it’s other students’ names or legal advice,” said Jim Wheaton, a William and Mary Law School professor who runs a legal clinic for future attorneys that plan to work on special education issues. “It just blows my mind that they would be so reckless.”

But he said that there’s not much parents can do about such violations. They can file complaints, but there’s no right to sue under FERPA.

“In religious terms,” he said, “it’s, ‘Go forth and sin no more.’”

The students, 12- and 16-years-old at the time of the alleged incidents, said district officials failed to respond adequately to their reports — accusations they deny. In court, the students’ lawyers fought successfully for their right to stay anonymous.

“It’s completely irresponsible,” said Shiwali Patel, an attorney with the National Women’s Law Center, which supporting one of the former Fairfax student’s requests to keep her identity private. She said a lot of victims of sexual violence don’t come forward because they “don’t want to have their name out there in the public.”

The 74 reported Wednesday on the district’s release of records on an estimated 35,000 students to a parent who has been an outspoken critic of Fairfax’s data privacy record. District officials declined to comment on the specifics of the disclosures, but late Wednesday issued an apology and launched an “external legal investigation” to determine how staff released the documents.

Two weeks ago, Callie Oettinger, a special education advocate, went to her local high school to review what she thought were records she had requested on her children. But she ended up with a trove of digital files that included personal information such as addresses and disability diagnoses, and that named students who had engaged in self-harm or been hospitalized. “We are deeply sorry that this happened,” the district said, predicting the probe “could take some time” due to the large number of affected students.

In addition, Superintendent Michelle Reid responded to an email from Oettinger, saying that she had “spoken with staff and requested an immediate and thorough review into this deeply concerning matter.” 

The documents also named students with disabilities involved in a over the use of seclusion and restraint. Following a local news investigation, almost 1,700 instances involving over 200 students during the 2017-18 school year. Some students as young as six were isolated in a room dozens of times during the year. The case ended in 2021 with in which the district promised to phase out such practices by the end of last school year. Court documents only used students’ initials, but the documents released used their full names. 

“Absolutely, student names should have been protected,” said Denise Marshall, executive director of the Council of Parent Attorneys and Advocates, a nonprofit that joined the parents who sued the district. She called the leak “an egregious breach of privacy.”

One of the documents on those students, labeled “attorney work product” and “privileged and confidential,” also contained the names of two former students involved in Title IX cases against the district. It identified them as “Jane Doe,” but then listed their real names in parentheses. Their last names were also included in an email from John Foster, the district’s general counsel, to board members about cases they’d discuss in a 2020 closed meeting.

In the , a plaintiff identified as Jane Doe was a 16-year-old Oakton High School student when she alleged that she was sexually assaulted during a three-day band trip in 2017. She sued in 2018, saying that officials violated Title IX because they knew about the allegations, but waited until the trip was over to address it. She alleged that the district discouraged her from contacting police and when they told her parents, suggested their daughter would face discipline for having sex while on the trip.

Doe won her case in the U.S. Court of Appeals for the Fourth Circuit, but it ended in a settlement last year after the U.S. Supreme Court declined to hear the district’s appeal. She received almost $588,000 in , but the district made no admission of responsibility. The agreement includes a stipulation that the district will always redact Doe’s real name from any copy of the document and only use a pseudonym when referring to the case.

Lawyers for both students declined to comment on the recent disclosures.

The second case, , is set for trial in March in a federal district court. B.R., as she’s named in the suit, was a 12-year-old student at Rachel Carson Middle School in 2011 when she said an older group of students repeatedly raped, tortured and threatened her with death over a four-month period. She alleged that they were part of a gang tied to sex trafficking in Northern Virginia.

While she later reported the alleged attacks to the police, she said the detective who investigated was a former school resource officer in the district who quickly closed the case. The district argued that staff responded appropriately, but a by the U.S. Department of Education’s Office for Civil Rights concluded the district could have acted more quickly. As a result, the district updated its policies.

At 19, she sued the district and her alleged attackers, saying educators ignored her requests for help. The school district argued the case should be dismissed because she missed a deadline for requesting to use a pseudonym. The in B.R.’s favor, but the district appealed to the Fourth Circuit.  

The National Women’s Law Center was one of 52 organizations that argued the case should continue, despite what it called a “procedural technicality.” In November 2021, the ruled in favor of the plaintiff. 

“In many of these cases, plaintiffs are proceeding with a pseudonym. That is not uncommon,” Patel said. “For the district to push back against that is a bullying tactic. It doesn’t impact their ability to defend the lawsuit.”

Republicans have called on the administration to and are the administration for its interpretation that Title IX covers sexual orientation and gender identity. But Democrats say transgender students need the overhaul to combat discrimination and harassment in school. Excluding trans students from using bathrooms and playing on sports teams consistent with their gender identity denies their civil rights, they say. 

The U.S. Department of Education is still reviewing “a historic number of comments” from the public on the proposed regulations, according to a department spokesperson, and is now likely to miss its for release.

The department’s Office for Civil Rights received almost 240,000 comments on the primary rule, and more than 156,000 on the athletics rule. The department plans to release both portions at the same time, but the draft rule still faces review from the Office of Management and Budget, a required step that typically lasts 120 days.

While department officials declined to say if they’d miss the deadline, one expert is skeptical.

W. Scott Lewis, a partner with TNG, a consulting firm that works on Title IX issues, said it’s possible the rule won’t come out until spring. That timing, he said, “would be better for school districts and colleges” because it would allow them to make changes in the spring for the 2024-25 school year. 

The initial draft was released in July 2022, followed by the in April.

“We might miss it; we might not,” a department spokesperson told The 74 Friday. “The Department is working overtime to ensure that each [comment] is thoroughly read and carefully considered.”

Higher Ed Dive the delay Thursday. Opponents of the rewrite seized upon the news as a sign their pushback has been effective.

The administration is “responding to growing criticisms from many sectors of society,” Stop Abusive and Violent Environments, an advocacy organization, said in a .

But advocates for the revision say they are tired of waiting.

Anya Marino, director of LGBTQI Equality at the National Women’s Law Center, said trans and nonbinary students are facing “staggering rates” of abuse and harassment. A showed that almost 70% of LGBTQ students feel unsafe at school because of their sexual orientation, gender identity or gender expression. Four in 10 LGBTQ students said they avoided bathrooms, locker rooms and gym class because of concerns for their safety.

“These very real harms have been exacerbated by the recent wave of anti-LGBTQ legislation and policies introduced at the state and local level, nationwide,” she said. “The Department’s rule is needed now.”

Biden took office with plans to roll back former Education Secretary Betsy DeVos’s similarly divisive rewrite of Title IX and, for the first time, extend protections to LGBTQ students. The DeVos rule, which also went through a formal notice and comment period, narrows the definition of sexual misconduct and sets limits on investigating incidents that occurred off campus. The rule also acknowledges the due process rights of students who said they have been unfairly accused of sexual misconduct. 

The Biden proposal would require schools to investigate “hostile environments” even if they occur outside of school. 

But the plan to broaden the rule to prohibit discrimination and harassment based on gender identity and sexual orientation has sparked the most outrage from conservatives, who argue the administration would undo Title IX’s accomplishments for women over the past 50 years.

Recognizing the sharp divide over trans students’ participation in girls’ sports, officials handled that part of the rule separately and ultimately issued a draft that in general would allow elementary-age students to play sports consistent with their gender identity, but gives districts the discretion to exclude older trans students from competing with cisgender girls in certain sports. 

now bar trans students from participating in sports consistent with their gender identity.

The proposal left the argument far from settled. Most advocates for LGBTQ issues say there are no circumstances in which trans students should be excluded.

In a counter move, the GOP-dominated House in April that would make the inclusion of trans students on teams consistent with their gender identity a Title IX violation. The Senate, still in the hands of Democrats, isn’t expected to take action on the bill.

This would be the second time release of the final rule has been pushed back. The department originally . Despite the procedural delays, the administration is still acting under Biden’s 2021 that prohibits discrimination on the basis of gender identity and sexual orientation. 

“We continue to enforce Title IX consistent with existing law that protects students on the basis of sex, including LGBTQI+ students,” the spokesperson said.

That interpretation led to a  from the U.S. Department of Agriculture, stating that the order covers school meal programs and that any program receiving Food and Nutrition Service funds “must investigate allegations of discrimination based on gender identity or sexual orientation” and update signs to say nondiscrimination policies include LGBTQ students.

Twenty-two states over the issue, and Republicans in Congress, including Sen. Rob Marshall of Kansas, accused the administration of holding “children’s lunch hostage in pursuit of your woke agenda.” 

The department spokesperson did not offer a new timetable for releasing the final rule, saying, “We are utilizing every resource at our disposal to complete this rulemaking process as soon as is practicable.”

The Texas attorney general’s office filed a lawsuit Wednesday against the Biden administration over its interpretation of Title IX — which was expanded two years ago to prohibit discrimination on the basis of sexual orientation and gender identity — arguing that noncompliance puts Texas schools at risk of losing federal funding.

This lawsuit highlights an existing rift between Texas legislation and the 51-year-old federal civil rights law.

In 2021, the Biden administration said that Title IX, which protects people from sex-based discrimination in educational programs and activities, also applies to LGBTQ students.

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That same year, the Texas Legislature passed a law that bans transgender children in K-12 public schools from playing on sports teams that are aligned with their gender.

State law prohibits schools from following the Biden administration’s interpretation of Title IX, which the attorney general’s office said could put districts at risk of losing federal funding. During this year’s legislative session, Texas lawmakers passed , which expanded the existing restriction on transgender students to include athletics at the . And on Wednesday, Gov. announced he would sign what he’s calling the “Save Women’s Sports Bill” this week.

“Texas is challenging this blatant attempt to misuse federal regulatory power to force K-12 schools, colleges, and universities in our state to accept and implement ‘transgender’ ideology — in violation of state law — by misusing the Title IX statute to threaten the withholding of federal education funds,” said a statement from the attorney general’s office announcing the lawsuit.

“The Administration’s unlawful guidance could put at risk over $6 billion in federal funding that supports Texas K-12 and higher education institutions.”

The lawsuit was filed by , who is serving as the interim attorney general. was suspended and faces an impeachment trial in the Texas Senate later this summer. Paxton had previously been critical of Biden’s expanded Title IX regulations.

In the 2020 case , the U.S. Supreme Court ruled that Title VII of the landmark Civil Rights Act of 1964, which bars employment discrimination on the basis of sex, applies to gay and transgender workers as well.

Subsequently, the Biden administration updated the Title IX regulations to comply with the Bostock ruling by prohibiting discrimination in educational activities and programs on the basis of sexual orientation and gender identity.

In April, the Biden administration proposed an amendment that would prohibit blanket bans barring transgender students from participating on sports teams consistent with their gender identity. The amendment applies to K-12 schools, as well as universities.

“Trans kids deserve to be respected in schools. Kids having their pronouns respected is a basic human right that cis people take for granted. Does the AG really want to tell Texas children that some kids deserve their teacher’s respect and others do not?” Johnathan Gooch, communications director for the LGBTQ advocacy group Equality Texas, said in a statement to The Texas Tribune.

“When the Supreme Court ruled that trans rights are part of Title VII protections, they rightly saw that trans and gender expansive people are protected under federal civil rights laws,” he said.

The attorney general’s announcement noted that this was Texas’s 50th lawsuit against the Biden administration.

Disclosure: Equality Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete .

This article originally appeared in  a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Department civil rights officials eschewed either blanket inclusion of trans students in teams consistent with their gender identity or banning such policies altogether.

In a sign of the controversy the issue has generated, the department received over by Monday’s deadline. But if those remarks are any indication, a hoped-for compromise could remain elusive.

“No young person should ever be excluded just because of who they are — especially students who just want to play sports,” wrote Tim Turbiak, a board member for the Ballston Spa Central School District, north of Albany, New York. 

North Carolina state Superintendent Catherine Truitt, meanwhile, said the proposal undermines Title IX’s intent.

“Under no circumstance can we assume that Congress, when crafting this important law 40 years ago, fathomed a biological male playing competitive sports in an all-female league or competition at any level,” she wrote.

Such views are among the many the department must reconcile before issuing a final rule. The existing draft largely puts interpretation of the policy in the hands of individual districts. But several experts said it lacks clarity on several key issues and leaves school systems in a legal no man’s land if they’re in one of with a categorical ban on trans students in sports. 

In a state with a ban, “What does [the Education Department] expect the recipient to do?” the Association of Title IX Administrators, a national membership group, asked in an 11-page comment. 

Nineteen states have already in the U.S. Court of Appeals for the 6th Circuit opposing the Biden administration’s interpretation of Title IX. A involving a transgender West Virginia middle schooler who runs track is before the 4th Circuit.

In general, the draft rule would allow elementary-age students to play sports consistent with their gender identity and likely continue in middle school. In high school, however, districts could make a case for excluding trans athletes if they can show how that decision achieves an “important educational objective.”

District leaders will need clearer guidance than the department has provided so far to write those policies, according to the Title IX association’s .

In general, the organization wants a plainly written rule allowing students to participate in athletics consistent with their gender identity. At this point, the draft addresses a “phantom fear” that trans female athletes would dominate competitive sports, wrote board Chair Brett Sokolow and President Daniel Swinton.

If the department fails to heed that advice, the association urged officials to provide examples of restrictions that would and would not comply and offer clarity on specific scenarios that are likely to arise if the draft becomes official policy. 

For example, if a trans student makes a team, but is “benched” and never gets to play, would that qualify as discrimination on the basis of gender identity? They want the department to clarify exactly what rights Title IX protects. 

“Is it the right to be on a team, the right to compete, the right to have the opportunity to win or play, etc.?” they asked.

‘Case-by-case basis’

With the issue likely to end up before the U.S. Supreme Court, Max Eden, a research fellow at the conservative American Enterprise Institute who opposes the change, said the political debate currently favors those who oppose any restrictions on trans students in sports.

Democrats, he said, “will publicly argue that Republicans are going to the Supreme Court to defend sex segregation in mostly non-existent elementary school sports.”

He argues that the administration’s attempt to bridge the divide over the issue has failed.

“It appears to concede everything, because high schools can adopt policies that predicate competitive sports participation on biological sex,” he said. “But actually, it concedes nothing, because [the Office for Civil Rights] reserves the right to insist that those policies change on a practically arbitrary and case-by-case basis.” 

When Sandra Hodgin, founder and CEO of the Title IX Consulting Group, first read the draft, her initial thought was, “Oh boy, the conservative side is going to have a heart attack.” She said she’s heard some district leaders in more conservative parts of California, where she’s based, discuss rejecting federal funds rather than comply.

Progressive districts, she said, seem more willing to balance inclusion with respecting the concerns of conservative parents. 

“They don’t want to make it seem like they are just jumping on the Biden bandwagon,” she said.

Co-ed teams

While debate over the issue focuses mostly on trans girls, an incident last fall in Florida demonstrates some of the confusion over the issue. The Duval County Public Schools to play on the boy’s soccer team, citing the state’s ban on trans girls playing on a girls team. But the district later reversed its decision and apologized.��

Six states — Alabama, Arkansas, Georgia, New Mexico and Texas — require students to compete on teams consistent with the sex listed on their birth certificate, according to the advocacy group . Several more require documentation that a student’s gender has changed before they can play on a team where they feel most comfortable.

Rules for middle school students, who often enter puberty during those years, should be more explicit, the Title IX association said, since only about a third of state athletic associations have policies governing middle and junior high school sports.

“Given the changes the body undergoes during puberty, educational objectives like injury avoidance or fairness may increase in significance after puberty,” they wrote.

Finally, the association wants the department to explain vague terms such as “minimize harms to students” and clarify whether districts would have to organize or pay for alternative opportunities for trans students to play. 

Districts stuck in limbo between the federal government and state law should consider adding a co-ed team, Hodgin recommended. 

“I’ve been saying this for well over a year. It costs money, time and attention. Who is going to coach it? And who are they playing against?” she asked. “But if we’re really looking at equity and ensuring there’s no discrimination, that would be my suggestion.”

Advocates for LGBTQ students agreed that the draft rule should be more straightforward. While the introduction notes that across-the-board bans in sports would violate the law, Olivia Hunt, policy director at the National Center for Transgender Equality, wants that statement reflected throughout the text.

Any case where a trans student is excluded has “to address a well-founded concern and not be based on over-broad generalizations. The regulation should spell that out,” she said. “This is an issue where there is a lot of confusion among policymakers at the state and district level.”

While large districts may have legal teams prepared to advise board members and administrators as unexpected challenges arise, the final rule, she said, “needs to be something that can apply in large and small districts.”

But in a moment of déjà vu, 7,339 of those Title IX complaints were filed by a single person — the same one who directed 6,157 similar claims to OCR in 2016, according to the civil rights office, which declined to name the filer, citing privacy rules. That person would have had to file an average of 20 complaints a day — or nearly one an hour — in 2022.

“This individual has been filing complaints for a very long time with OCR and they are sometimes founded,” Catherine Lhamon, the department’s assistant secretary for civil rights, told The 74. 

She noted anyone can file a complaint for any perceived violation.  

“It doesn’t have to be about their own experience,” Lhamon said. “There’s not a lot I can tell you about the person.”

In , the office received 18,804 complaints, the highest number in its history and a figure that exceeds by 12% its previous record of 16,720 set in . Lhamon has talked on multiple occasions about how is straining its limited resources, with 2022’s being particularly challenging. 

“We investigate every complaint over which we have jurisdiction,” the assistant secretary told The 74. “So the 7,339 complaints from that single individual last year took a very substantial amount of time for my staff.”

And while Lhamon did note her office has found in the complainant’s favor in the past, she didn’t immediately know how often or if this happened in 2022. 

In 2016, the more than 6,000 complaints filed by that same individual alleged discrimination in school athletic programs, according to the civil rights office. Fiscal year 2022 followed much the same pattern when the office logged 4,387 allegations of Title IX discrimination involving athletics. 

One complaint could include more than one type of alleged Title IX violation, encompassing, for instance, both athletics and gender harassment. 

The 2022 athletics-related claims far outpaced the 1,030 related to sexual or gender harassment or sexual violence. The figure also swamps similar claims from when just 2,093 complaints included Title IX-related claims — with just 101 focused on athletics. More than 500 cases concerned sexual or gender harassment or sexual violence that year. 

Some wonder about the type and validity of complaints filed by one person. 

“When you see that almost 80% of Title IX complaints filed with the Education Department were filed by a single person — and this person filed nearly 8,000 complaints in a year — it raises questions about whether at least some were filed in bad faith,” said Elizabeth Tang, senior counsel at the National Women’s Law Center. 

It’s possible too, Tang said, that the uptick can be a response to increased awareness about student’s rights. It might also reflect a perception that the Biden administration is more receptive to these complaints than the prior one which, under the leadership of former Education Secretary Betsy DeVos, looked to roll back more stringent investigations of campus sex assault and discriminatory discipline claims.

Liz King, senior program director of education at The Leadership Conference on Civil and Human Rights, said she hopes greater awareness is at work, but is concerned about ongoing and possibly increased civil rights violations against students. 

“Any single instance of discrimination is one instance too many,” she said, adding that the civil rights office does not have the staff to meet the task it’s been given. 

The surge in complaints comes at a time when the agency faces significant challenges: It shrank from nearly 1,100 full-time equivalent staff in FY 1981 to 546 last year and is dealing with a host of issues that reflect by the pandemic.

Biden, in his March budget address, sought — to $178 million — for the civil rights office to meet its goals. Lhamon, whose 2021 confirmation Senate Republicans tried to block, said she’s grateful for the president’s support and hopes Congress approves the increase. 

Race, color, or national origin discrimination claims made up 3,329 of all complaints received in FY 2022, according to the civil rights office’s annual report, which was released last week. That’s up from 2,399 the year prior. Disability-related complaints comprised 6,467 of the total compared to 4,870 in FY 2021.  

At the same time, age discrimination claims, which made up 666 complaints in the most recent report, were down from 1,149 the prior year. The office notes the majority of these claims were also filed by a single person in both years.

The civil rights office fielded 8,934 complaints in FY 2021 and more than 9,700 the year before that, according to its annual reports. 

Lhamon said a number of cases this year involved the LGBTQ and transgender community, a student population that has become the focus of hostile legislation in multiple conservative states. The complaints can cover a wide swath of issues, she said, from the prohibition of same-sex prom kings and queens to a school’s refusal to allow an LGBTQ student group to form on campus. 

“It could be that students are not allowed to use the bathroom consistent with their gender identity or are not allowed to play on a particular sports team,” she added. 

The first resolution agreement crafted by her office on behalf of a transgender student was in 2013: It developed fewer than 20 such agreements for these children in FY 2022, Lhamon said. 

Among the allegations made against schools, the civil rights office found in April 2022 that Chino Valley Unified in California violated Title IX by failing to properly respond to a complaint of sexual harassment of students on a high school athletic team. 

This included the “videotaped assaults of teammates, students forcibly physically overpowering other students and sharing photos of their genitals among the team and on social media, and students placing their genitals on and near other students’ faces and bodies.”

The response from district administrators and coaches failed to end the behavior. According to the office, Chino Valley agreed to reach out to all former athletes from the offending school’s fall 2017 team and offer counseling services or reimbursement for such services.

It also was made to conduct a climate survey of the school’s athletics teams and train district leaders, school administrators and coaches about their responsibilities for responding to such claims. 

In another case, this one involving the San Juan Bautista School of Medicine in Puerto Rico, OCR found the school failed, over the course of several years, to investigate a student’s report that another student sexually assaulted her. 

The office concluded that the school’s procedures for resolving sexual harassment complaints did not comply with Title IX. As a result, it agreed to conduct the investigation, reimburse the complainant for some coursework, train employees and align its grievance procedures with the law. 

In a third case, Tamalpais Union High School District in California was faulted by OCR for failing to investigate allegations that a transgender student was harassed about her appearance, voice, body, name and pronouns. 

The office found in June the district’s inadequate response allowed for a hostile environment for the student. The district agreed to reimburse the student and her family for counseling costs and review its policies and procedures among other measures.

If adopted, school systems in that “categorically” ban transgender athletes could find themselves caught between state and federal laws, a tension that is likely to play out in the courts.

Under the proposed rule, however, schools and colleges could “adopt policies that limit transgender students’ participation” in specific sports — particularly at the more competitive high school and college levels. That would effectively bar some transgender girls from participation.

“Some sex-related distinctions in sports are permissible as long as the school ensures overall equal athletic participation opportunities,” a senior administration official said in a briefing with reporters, noting the department’s effort to address the shifting legal landscape on an issue that has sharply divided the country since President Joe Biden took office. 

The rule will be published in the coming weeks, the official said, and available for public comment for 30 days.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” Education Secretary Miguel Cardona said in a statement. 

The proposed rule makes good on a promise Biden issued on his first day as president, when he released an stating that Title IX protections against discrimination extend to students based on their gender identity and sexual orientation. Since then, banning transgender students from competing in girls sports has become a defining issue for Republicans. Just this week, Kansas lawmakers overrode the veto of Gov. Laura Kelly and imposed a ban on transgender athletes competing in kindergarten through college. And 17 states that they would sue if the department went through with efforts to “redefine biological sex to include gender identity.” 

But administration officials believe they’ve struck an appropriate compromise. “The proposed rule that we offer today is our best judgment,” the department official said. “We are confident in our legal opinion.”

The proposal would require schools to carefully balance issues of inclusion and fairness, and nods toward evolving understanding of how children’s bodies develop during puberty. It states that most students in the elementary grades would be able to play sports consistent with their gender identity and likely be able to continue doing so in middle school. At higher levels, schools would have to consider the specific sport and competitiveness level before determining if transgender students should be excluded. Schools would be allowed to decide for themselves, the official said, whether limiting trans students’ participation meets an educational goal.

“This is a high, demanding standard that will be difficult for schools to meet,” said Scott Skinner-Thompson, an associate law professor at the University of Colorado-Boulder. 

The administration’s measure may not go far enough for transgender student activists or those who think inclusion hinders the goals of women’s sports.

Conservatives who have opposed the administration’s stance on the issue said it puts school districts in the middle. The proposal, according to , places “the onus on school districts” to determine whether their policy would violate the law.

Florida Education Commissioner Manny Diaz Jr. went further, promising in a statement that “we will never allow boys to play in girls’ sports. We will fight this overreach tooth and nail. And we will stop at nothing to uphold the protections afforded women under Title IX.” 

LGBTQ advocates say conservatives are discriminating against vulnerable students who make up just . 

Some advocates welcomed the proposed rule’s language that across-the-board bans on trans girls participating in girls and women’s sports violate the law, but expressed concern that some trans students would still face discrimination.

Title IX “protections don’t stop when a student leaves the classroom to go out onto the soccer field or a volleyball court or into a bathroom,” said Sasha Buchert, nonbinary and transgender rights project director at Lambda Legal, a law firm and advocacy organization. 

The draft rule also comes as the GOP-led House prepares to vote on — the Protection of Women and Girls in Sports Act — that would essentially turn state bans into federal policy. The legislation is not expected to pass in the Senate. 

The state bans have been the subject of numerous legal challenges. The release of the rule late in the afternoon before a holiday weekend coincided with the Thursday of West Virginia Attorney General Patrick Morrissey’s emergency request to allow its 2021 Save Women’s Sports law to go into effect. Becky Pepper-Jackson, identified male at birth, and her mother Heather Jackson to prevent the law from being implemented, saying that it violates Title IX and the U.S. Constitution. 

The court’s ruling means that Pepper-Jackson, 12, can continue participating on her school’s cross country and track teams while the U.S, Appeals Court for the 4th Circuit considers her case.

The American Civil Liberties Union of West Virginia and Lambda Legal called the state’s request “a baseless and cruel effort to keep Becky from where she belongs — playing alongside her peers as a teammate and as a friend.”

The draft is the second part of the administration’s rewrite of Title IX. Released last year, the initial draft extended Title IX protections to LGBTQ students but left unanswered questions about school sports.

The administration largely aims to reverse a Trump-era rule that required live hearings as part of investigations into sexual harassment and misconduct. The proposed rule also removes a requirement that defines harassment as “severe, pervasive and objectively offensive.” 

The department had to review nearly 350,000 comments on Title IX, with many focusing on sports. 

“We’ve been very grateful to be able to take account of the very wide variety of views on this topic,” the official said. Comments from students, professional athletes, teachers and others were incorporated to “inform that proposed law.” 

Under the proposed changes, announced Thursday, the law would protect victims against discrimination based not just on sex but on sexual orientation and gender identity, in effect adding transgender students as a protected class. Current regulations are silent on these students’ rights.

But the proposal sidesteps the question of transgender athletes’ rights to compete in girls’ sports, an explosive issue administration officials said will get its own set of regulations at a later date.

“This is personal to me as an educator and as a father,” U.S. Education Secretary Miguel Cardona said during the announcement. “I want the same opportunities afforded to my daughter and my son — and my transgender cousin — so they can achieve their potential and reach their dreams.”

The changes come 50 years to the day after President Richard Nixon signed the federal civil rights law that bans sex discrimination in education.

Cardona on Thursday noted that LGBTQ youth “face bullying and harassment, experience higher rates of anxiety, depression, and suicide, and too often grow up feeling that they don’t belong.”

The proposed regulations, he said, “send a loud message to these students and all our students: You belong in our schools. You have worthy dreams and incredible talents. You deserve the opportunity to shine authentically and unapologetically. The Biden-Harris administration has your back.”

Education and civil rights groups welcomed the proposed rules, with Ronn Nozoe, CEO of the saying they “greatly strengthen principals’ abilities to ensure schools provide what students need.” 

Amit Paley, CEO of, a suicide prevention and mental health organization for LGBTQ youth, applauded the administration’s bid to extend Title IX protections to sexual orientation and gender identity, saying, “School should be a place where students learn and are comfortable being themselves, not a source of bullying and discrimination.”

But the proposed rules irked some conservative groups. In a, Nicole Neily, president of Parents Defending Education, called the move a “federal overreach” and dubbed the proposed regulations “The Biden administration’s ‘Must Say They’ rewrite of Title IX,” refering to the preferred pronoun of some who are transgender. 

“American families should be deeply concerned by the proposed rewrite of Title IX,” Neily said. “From rolling back due process protections, to stomping on the First Amendment, to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by Congressional action, the Biden Administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country.”

Taken together, the proposed regulations would create a sharp contrast to Trump administration rules adopted in 2020 under then-Education Secretary Betsy DeVos. Under DeVos, for instance, schools were prohibited from opening Title IX cases if an alleged assault took place away from school grounds. Under the new rules, schools would be required to address “hostile environments” in programs and activities, even if the conduct that contributed to the hostile environment “occurred off-campus or outside the United States,” a senior official told reporters.

“Our view now is that the existing regulations do not best fulfill Congress’ mandate in Title IX,” the official said. “There is more we can do to ensure that students do not experience sex discrimination in school.”

Cardona’s proposed changes both expand the definition of sexual harassment and potentially limit opportunities for students accused of sexual assault or harassment to confront their accusers. Administration officials said the new regulations would require schools to take “prompt and effective” action on campus sex discrimination.

But they also said the regulations in effect loosen requirements on schools’ sex assault investigations: The proposed rules, for instance, would “permit but not require” schools to hold live hearings in which accused students can directly confront survivors.

A senior department official, who briefed reporters Thursday on background, said the administration has concluded that a live hearing, which resembles a courtroom procedure, “is one, but not the only way, to address investigation and to determine what has occurred.” The official noted that the vast majority of schools were not conducting live hearings before the Trump administration began requiring them in 2020. “And it was clear to us that a live hearing was not essential to determination of outcomes and a fair process,” the official said.

In a statement, Sen. Richard Burr (R-NC), said the move “returns to the deeply flawed campus disciplinary process of the Obama Administration, which led to hundreds of inconsistent judgements and more than 300 legal challenges. The existing rule struck a balance that follows the law and is fair to both parties.”

Notably absent from Thursday’s announcement was any mention of Title IX’s application to athletics, which has caused a furor due to a handful of transgender athletes’ bids to compete in girls’ sporting events.

The administration said it will engage in a separate rulemaking process to address the law’s application to athletics and gender, but offered no immediate timeline for the process. A senior department official said the topic “deserves its own separate rule-making process.”

Administration officials have previously said Title IX, which prohibits sex discrimination and harassment in programs receiving federal funds, will echo the in Bostock v. Clayton County, Georgia, which extended protections against sexual harassment and discrimination in the workplace to LGBTQ employees.

While the department’s interpretation of the Bostock ruling doesn’t mention sports, the Biden administration last year filed in a West Virginia case in which a transgender girl who wants to compete with girls on her middle school cross country team is challenging the state’s 2021 law banning students born as male from participating in girls’ sports. 

A group of 15 Republican-led states, led by Montana Attorney General, has threatened to challenge the regulations in court,. Since last year, a dozen states have passed legislation prohibiting trans females from competing in girls’ and women’s sports. 

Last week, the , the world governing body for swimming, voted to prohibit transgender athletes from competing in high-level women’s competitions unless they began medical treatments to suppress testosterone production early in their lives.  

The group, known internationally as Fédération internationale de natation, or FINA, said it would also a new, “open” category for athletes who identify as women but do not meet the requirement to compete against people who were female at birth.

By contrast, World Cup and Olympic soccer star Megan Rapinoe last week that she is “100 percent supportive of trans inclusion” in sports, noting that what most people know about the topic comes from “relentless” conservative talking points that don’t reflect reality. 

“Show me the evidence that trans women are taking everyone’s scholarships, are dominating in every sport, are winning every title,” she said. “I’m sorry, it’s just not happening. So we need to start from inclusion, period. And as things arise, I have confidence that we can figure it out. But we can’t start at the opposite. That is cruel. And frankly, it’s just disgusting.”

The public has 60 days to send comments on the new proposal, which could take several months to finalize. 

It was three years after Title IX — the federal civil rights law banning sex discrimination in education — was signed into law. “The issues we are discussing here were the same ones people, including me, were grappling with when the original Title IX regulations regarding single-sex teams were being written,” she said.

The latest debate, about whether Title IX should codify transgender rights — something that could happen when revised regulations are released in the coming weeks — has caused deep divisions, and in some cases, pitted natural allies against each other.

But while the issue is difficult, especially in sports, it’s a mistake to think that things were less complicated when President Richard Nixon signed Title IX into law 50 years ago on June 23, 1972.

“Looking back, things always seem simpler, but I remember how fraught the arguments were, and how difficult it was for people to reconsider their beliefs about boys and girls,” said Susan Bailey, who helped implement Title IX while working at the Connecticut Department of Education. The transgender question “is very polarizing, and people once again want a single, simple solution.”

‘Title IX shook all that up’

The fact that it took three years from the time the law was passed to draw up regulations showed that “the Nixon administration did not have the slightest interest in enforcing this law or equality for women and girls,” said Holly Knox, who was a legislative aide in the then-U.S. Office of Education, covering Congressional hearings on sex discrimination. After the law passed, she became disillusioned with government education and enforcement efforts and established the Project on Equal Education Rights at the National Organization of Women’s Legal Defense and Education Fund.

Although most of the high-profile disputes involving Title IX — which applies to education programs and activities that receive federal funds — now involve sports or sexual harassment and assault cases, the original impetus was much broader. 

Employment of women teachers and coaches, pregnancy discrimination and admissions to graduate schools, including law and medicine,were all major issues, said Jean Peelen, who was part of the group drafting the final policy for intercollegiate athletics in 1979. 

To demonstrate the law’s impact on graduate admissions, Peelen noted that in 1974, two women were admitted to the University of Alabama’s law school. In 1975, when she entered, 25 percent were women, increasing to 50 percent in 1976. 

In elementary and secondary schools, the legislation affected issues from class assignments to textbooks. As just one example, many K-12 schools scheduled advanced math and advanced English at the same time, so boys were steered toward math and girls toward English. “Title IX shook all that up,” said Bailey, who became a professor of Women’s & Gender Studies and Education at Wellesley College.

One of the most complex questions at the time was what could remain single-sex and what couldn’t, from choirs to gym classes to colleges. In that sense, the transgender debate is “a second-generation issue,” said Dunkle, who worked with both the Association of American Colleges’ Project on the Status and Education of Women and the National Coalition for Women and Girls in Education.

While the latest round of Title IX revisions includes important issues for transgender students beyond athletics, one of the major sticking points is whether allowing trans women to compete on women’s teams discriminates against athletes identified as female at birth.

The arguments and solutions proffered today echo many of those Dunkle grappled with in a 1974 paper she authored: “What Constitutes Equality for Women in Sport?” 

The paper discusses both competitive and non-competitive college sports and highlights discrimination that was almost universal. Examples included one college that didn’t allow women to use a handball court unless a man signed up for her and a large midwestern university that reserved two hours of pool time for “faculty, administrative staff and male students.” There was no reserved time for female students.

Then it tackled how sports teams should be configured, the very issue at the core of the current debate. Dunkle laid out the options: Should competitive sports teams in college be co-educational? Single sex? A women’s, men’s and mixed-sex team? Should teams be based on height and weight? Should top women athletes should be able to apply for a position on the men’s team? While this might allow elite female athletes stronger competition, critics argued it would be administratively unwieldy and result in skimming the best athletes off women’s teams.

 “It is almost painful to read the old paper,” Dunkle said. “There were all these choices and all were imperfect.”

Ultimately, a kind of “separate but equal” option won out for most competitive teams. Of course, decades later there are many of women athletes treated as second-class citizens, but the idea of girls and women playing separately from boys and men on most competitive teams has become the norm.

Backlash to Lia Thomas’s victory

The tell the story of Title IX’s success: Before the law’s passage, there were 300,000 girls and women playing high school and college sports nationwide. Today, there are more than 3 million.

But the transgender issue has unsettled what once seemed resolved. University of Pennsylvania  swimmer heightened the debate after placing first in the 500-yard freestyle event in March. She became the first openly transgender woman to win an NCAA Division I national championship, but as a man, ranked 65th in the event. 

The emergence of the issue as culture war fodder, particularly among Republicans, makes it all the more uncomfortable for those who have fought for women’s equality and back transgender rights in employment, housing and education.

have already passed bills prohibiting trans girls from competing on girls high school sports teams. Most recently, the Ohio House of Representatives passed a bill called ” that bans anyone not identified as female at birth from participating in women’s sports in high school and college. If an athlete’s sex is questioned, she would be required to produce a doctor’s note that includes an examination of her “internal and external reproductive anatomy.” The Senate has not yet voted on it.

The American Civil Liberties Union has taken a stand unequivocally the right of trans women to play on women’s teams, and the International Olympic Committee last November issued a that states athletes should not be excluded solely on the basis of their transgender identity or sex variation.

But Nancy Hogshead-Makar, who won three gold and one silver medal for swimming in the 1984 Olympics, argued that allowing trans women to play on women’s sports teams means most women will lose out — which, she said, goes against everything Title IX stands for. 

For Hogshead-Makar, it all comes down to biology. Science, she said, has shown that transgender women — in particular those who have gone through male puberty — will almost always have a substantial physical advantage.

“Equality requires separation,” said Hogshead-Makar, now a lawyer who runs Champion Women, an organization aimed at supporting women and girls in sports and educating about Title IX. In 2020, Sports Illustrated listed her as one of most influential and powerful women in sports. Understanding of the biological differences in trans women is , but shows that there may be residual muscle mass and strength advantages even a year after testosterone suppression.

Hogshead-Makar swam competitively at a time when trainers and coaches gave elite East German athletes disguised as vitamins. The scandal was exposed after the Berlin Wall came down in 1989.

“They were doped to the gills and everybody knew it,” she said. “And it felt like nobody cared about us. We were expected to be feminine, gracious losers.” She was victorious in the 1984 Olympics, she said, only because the Soviets and much of eastern Europe didn’t compete. The U.S. had boycotted the 1980 Olympics in Moscow to protest the Russian invasion of Afghanistan; four years later, the Soviet Union and its allies said they would not attend the Los Angeles-based Olympics because its competitors would not be safe amid anti-Russian hysteria. 

‘I’ve come to the conclusion it’s not ok’

The move to allow trans girls and women to compete on female teams leaves her and many other women athletes feeling the same way they felt during the doping scandals, she said — forsaken and undefended.

Donna Lopiano, an all-American softball player who heads a sports consulting company, said one option will not fit all trans women. It depends on when they went through puberty, if they received hormone therapy and what sport they’re playing.

She suggested multiple choices need to be considered, some of which mirror those considered by Dunkle in 1974. Should there be men’s and women’s teams, and a third class  open to everyone, including transgender athletes? Should inclusion depend on the sport and whether it requires strength or speed? Should there be handicaps like in golf? Separate scoring?

“We’ve gone through this with athletes with disabilities,” she said. “Fair competition has to outweigh social justice if the idea is identical head-to-head competition.”

Peelen and Knox, both of whom are quick to acknowledge they have no special expertise in transgender issues, have landed on different sides of the question. Peelen said she first agreed that trans girls and women shouldn’t play on female teams.

But once she realized how small the number of such athletes are — estimated at less than 1 percent of the population — she changed her mind.

“In any high school, you could have a girl 14 or 15 years old who is six feet tall, and they let her play,” she said. “If the fear is that trans women are going to take over because they are faster or stronger, that’s true with anyone who doesn’t fit in with the norms.”

She initially contemplated what rules could be applied to even things out, such as factoring in weight and height, but decided, “This is absurd. Why not just recognize for some very small group of people on a sports team in a high school or a college somewhere in the U.S., it could seem unfair?”

Utah Gov. Spencer Cox, in that banned transgender athletes from playing in girls’ sports, was moved by the same reasoning: Of 750,000 students playing high-school sports in Utah, only four were trangender, and just one played for a girls’ team. He also cited research showing that can reduce the risk of among transgender teens.��

The legislature overrode his veto. 

The numbers of trans athletes could increase as the transgender population as a whole grows. While still a very small minority, the trans population has doubled in recent years. The Centers for Disease Control recently that 1.4 percent of 13 to 17-year-olds identify as transgender and 1.3 percent of 18 to 24-year-olds do so.  

Knox ultimately took the opposite path from Peelen, first believing trans women should be allowed to compete on girls and women’s teams, then reconsidering after learning more about the science.

“I’m delighted Title IX protects LGBTQ people from discrimination in admissions, employment and other areas, but because there are distinct biological differences, it would be unfair to let those who are born male and transitioned after puberty compete against biological women in competitive sports,” Knox said. “I’ve come to the conclusion it’s not ok.” 

Dunkle is still figuring it out. She supports including transgender students in almost all areas but doesn’t see how it could work in athletics without disadvantaging those identified as female from birth. Speaking from experience, she said, “Any policy that they come up with is going to be imperfect. You have to look at the results and effects, not just what looks fair in theory.”

“They wanted more evidence that she had gone,” said the trans student’s father, Jeff Walker. “I said, ‘I’ll send you media, pictures, an invitation from the White House.’ They still did not excuse the absence.”

The episode would certainly be in keeping with the spirit of laws signed by Alabama Gov. Kay Ivey, a Republican, that restrict trans students’ lives in and out of school. , similar to legislation in Texas and Arkansas, targets doctors who provide trans health services, like the prescription of puberty blockers, to minors. keeps trans students out of bathrooms and locker room facilities that match their gender identity. Like Florida’s so-called “don’t say gay” legislation, it also prohibits discussions of sexual orientation and gender identity in the elementary grades.

Such legislation might soon be on a collision course with federal law, as the U.S. Department of Education puts the finishing touches on a long-awaited rewrite of Title IX. That update is widely expected to codify the rights of trans students for the first time. Department officials have already said that Title IX, which prohibits sex discrimination and harassment in programs receiving federal funds, will echo the in Bostock v. Clayton County, Georgia, which extended protections against sexual harassment and discrimination in the workplace to LGBTQ employees.

A department spokesperson said Tuesday that it expects to release the new rule in May. 

Alabama is among 15 Republican-led states it. In the last year, a dozen states have passed bills prohibiting trans females from competing in girls’ and women’s sports. But the wave of legislation targeting LGBTQ students has since spread to encompass “just about every moment of their daily lives,” Sam Ames, director of advocacy and government affairs for the nonprofit Trevor Project, said earlier this month during a .

Experts expect the rule to put school districts in the center of what will likely be a long legal battle.

Max Eden, a research fellow at the conservative American Enterprise Institute, called it “a very unenviable place.”

“It sets up a big showdown between states and the federal government,” he said during a , “and schools will be caught in between the two forces.” 

Parents Defending Education, a nonprofit leading the campaign against what it calls districts’ “indoctrination” of students on issues of race and gender, organized the event to inform parents about the upcoming rule. Eden also warned of an unpleasant tug-of-war between schools that teach gender as a “fluid construct” and parents who oppose references to gender identity in the classroom.

“It gets to a fundamental question of what is a human being,” he said. “If a school says one thing and Mommy and Daddy say another thing, a kid has to pick, and that’s not a fun place to put an 8-year-old.” 

The public is clearly divided over such policies. A from the University of Chicago and the AP-NORC Center showed that allowing trans students to use bathrooms that align with their gender identity receives the most support from Democrats (52%) Hispanic adults (35%) and those with a college degree (45%). Nine percent of Republicans supported such policies. Forty-seven percent of those who voted in a recent school board election and follow news about their local board were opposed, compared to 35% who don’t follow such issues.

The tension is already on display in Oklahoma, where Attorney General John O’Connor told the that it’s illegal to let a trans girl use the girls’ restroom, while state education officials say it’s a matter for the district to decide. 

For districts that could face similar directives in the future, “federal law always wins,” said W. Scott Lewis, co-founder of the Association of Title IX Administrators. “The writing is on the wall. This is a protected class.” 

That might change if federal courts weigh in against the department. Two current federal cases involving trans athletes — one in and another in — could work their way to the U.S. Supreme Court. Despite Republicans’ questioning, newly confirmed Justice Ketanji Brown Jackson declined to comment on the issue during recent confirmation hearings.

While the education department’s interpretation of the Bostock ruling doesn’t mention sports, the Biden administration made its position known in filed last year in a West Virginia case. The plaintiff, a transgender girl who wants to compete with girls on her middle school cross country team, is challenging the state’s 2021 law banning students born as male from participating in girls’ sports. 

“Although the regulations allow recipients to operate or sponsor separate teams based on sex, the regulations do not define ‘sex’ or address how students who are transgender should be assigned to such teams,” the brief said. “When assigning students to single-sex sports teams, a recipient must still comply with the statutory prohibition against discrimination based on sex in Title IX itself.”

In a year marking Title IX’s 50th anniversary, some experts say the administration’s position could undermine years of work toward achieving equity in women’s sports. 

“Imagine you go to a meet to watch an event called ‘the Girls’ 100,’ which includes both males and females — some of whom identify as girls, some as boys, some as nonbinary. Specifically, what is it that makes the assembled individuals all ‘girls’ so that having them compete in a separate event from the ‘boys’ is defensible?” asked Doriane Lambelet Coleman, a Duke University law professor and co-director of the Center for Sports Law and Policy.

Some of the males could be on testosterone suppression, while some of the females are taking testosterone, she explained, adding that “such a field would only rarely allow a female who is not taking testosterone to win in a category that was originally designed for her, to secure her equal access to the social goods that flow from competitive sport.”

Lewis, with the Title IX administrators organization, predicted the issue will reach the court during its next term.

“They can’t let it sit any longer,” he said. 

The issue could also play out in Congress if Republicans regain control during upcoming midterm elections. But any legislation aimed at Title IX “will be entirely symbolic,” because it would need 60 votes in the Senate to pass initially and President Joe Biden would veto it, said R. Shep Melnick, a political science professor at Boston College.

“Congress has rarely amended Title IX, and never on a major substantive issue,” he said. “The conflict will play out in the administrative and judicial arenas.”  

‘Breaking a confidentiality’

Even before Biden took office, he pledged to revise the Trump administration’s Title IX rule, which increased protections for those unfairly accused of sexual misconduct. Once in office, he ordered the department to begin the lengthy process of rescinding the rule and restoring elements of Obama-era guidance that directed schools and colleges to address sexual assault.​

Those changes, already controversial, were quickly overshadowed by the administration’s efforts to incorporate the rights of LGBTQ students into Title IX. During a weeklong public hearing last year, the department invited comment from those experiencing discrimination based on sexual orientation and gender identity, further signaling that the rule — which will be put out for public comment upon its release — would address those issues.

It’s unclear whether the regulation will include detailed guidance about issues like preferred names and pronouns or sex-specific school uniforms, but advocates for trans students hope the department will supplement the rule with examples of how districts can address those issues. 

Schools should “make it clear what nondiscrimination looks like” said Asaf Orr, senior staff attorney for the National Center for Lesbian Rights. “Dictating that teachers can’t discuss anything related to gender identity is fostering a school environment that is not welcoming to LGBTQ students.”

Walker, who described his daughter Harleigh as “100% girl,” is a plaintiff in challenging Alabama’s new Vulnerable Child Compassion and Protection Act, which criminalizes transgender health services for children. He’s also concerned that requiring Harleigh to use the boys’ restroom will “open her up to assault.”

“My fear is some administrator at her school will try to make an example out of her,” he said. “They say this is going to protect my child. It’s not going to protect anyone.”

While the Alabama provision, which only applies to K-5, doesn’t affect Magic City Acceptance Academy, a Birmingham-area charter school that serves many LGBTQ students, Principal Michael Wilson said he’s concerned about a requirement for school officials to inform parents if students question their gender identity.��

“You’re breaking a confidentiality, a relationship that you have formed with kids,” he said, noting recent data showing increases in LGBTQ students seriously considering or attempting suicide.

The education department’s webinar highlighted what some schools are already doing to support trans students.

Sam Long, a trans biology teacher at Denver South High School in Colorado, talked about working with two other LGBTQ educators to “clean up” teaching materials on reproduction. 

“We can be more accurate and be more inclusive,” he said. “It’s ovaries that produce eggs. We’re acknowledging that not all women produce eggs, and also not all egg producers are women.”

Rebekah Bruesehoff, a trans student and activist from New Jersey, said she’s always “looking for clues” throughout her school — like preferred pronouns on a teacher’s ID badge — to see which educators are more accepting.

“I don’t just walk into class at the beginning of the year and announce that I’m transgender,” said the ninth grader, who described herself as a “total nerd” who loves school, plays field hockey and participates in musical theater. “It’s one tiny part of who I am, but there’s so much more to me.”

Viral videos of the incident show disturbing interactions between police and students, one of whom appeared to be a Black male teen who was and as he lay unresponsive on the ground. Some students as the pepper spray filled a school hallway. Another video appeared to show an officer pulling a girl across the hallway by her hair.

The incident at Little Elm High School unfolded during a Friday morning protest after a student claimed on Snapchat that she was sexually harassed by another student on a bus and disciplined for coming forward. On social media, teens at the 8,300-student district accused administrators of mishandling sexual misconduct complaints. A city spokesperson that police mobilized after students acted “aggressively” toward an administrator. 

School resource officers and how they interact with students, particularly students of color, have been under fierce scrutiny since George Floyd was murdered by a Minneapolis police officer in 2020. Amid national Black Lives Matter protests, dozens of districts ended longstanding ties with school-based officers, although several districts have recently reversed course, citing student safety concerns. 

Andrew Hairston, director of the Education Justice Project at Texas Appleseed, an advocacy group, called the viral videos “such a harrowing thing to witness,” and accused police of preventing students from checking to see if their classmate was OK as he laid on the floor after getting tasered. 

“The police officers are the violence,” Hairston said. “They are the threat in that video.” 

Two students were arrested for assaulting police officers, Little Elm Mayor Curtis Cornelious . 

“When a third student attempted to interfere with the arrest, the officer was forced to use pepper spray, and then a taser when the student would not stop advancing toward the officer,” he said. “A fourth student spit on an officer, which Texas law deems as an assault.”

In an initial statement on Facebook that was deleted but later reposted, the school district said a student demonstration caused “some students to behave in a way that caused a major disruption.” 

“The demonstration was a result of a social media post the day before that contained inaccurate information regarding an incident that happened a month ago,” the district said in the statement. 

Superintendent Daniel Gallagher said Monday the events leading to Friday’s student demonstration “hits us at the core of who we are and we have to find a way to restore the trust you need in order for all of us to move forward.” In a statement, Gallagher said the district “immediately launched an investigation” after a student made an allegation against a classmate. 

Though no students faced discipline for reporting sexual misconduct, misinformation that claimed otherwise proliferated on social media, he said. 

School and police officials were prepared “to accommodate a peaceful walkout,” but the protest “was not peaceful and caused a major disruption,” Gallagher said. “In one incident — not currently being shown on social media — a large group of students attempted to break into an administrator’s office in pursuit of targeted individuals who were in genuine fear for their safety.” 

Gallagher said school officials will hold a “listening session” on Nov. 30 to allow parents “an opportunity to voice their concerns, thoughts and provide suggestions to the district administration.” He also announced plans to create a committee to review the district’s sexual harassment reporting and investigation process, an “after-action review” of Friday’s clash between students and police and “an independent investigation” into the sexual harassment allegation that led to the student protest. 

Cornelious said the city will review the incident to ensure the officers followed proper police department procedures, but maintained that social media videos often lack necessary content to understand the full situation. 

“Whenever an officer arrests someone who’s acting aggressively or resisting, it’s hard to watch,” Cornelious said. “But Texas law gives police the right to take steps necessary to make an arrest. Those steps include the use of tasers and pepper spray as safe, non-lethal methods of subduing someone who is being aggressive and refusing to respond to requests.” 

Meanwhile, Hairston said the incident should reenergize national efforts to remove police from schools and encouraged Little Elm administrators to display “political courage.” 

“Dozens of districts have taken significant steps toward police divestment but so much more work needs to be done to get police out of schools,” he said. “More and more people are understanding that it’s an irredeemable institution. School policing can’t be reformed.” 

Lhamon, who faced steep opposition from Republicans, will lead the Education Department office in charge of enforcing federal civil rights laws in schools, including rules that prohibit discrimination based on race and sex. She secured the post after a combative confirmation hearing in July, followed by a partisan 11-11 vote a month later in which members of the Senate Health, Education, Labor and Pensions Committee deadlocked on her nomination. Lawmakers voted earlier this month to discharge her nomination from committee and bring it before the full Senate.��

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Harris’s vote, which broke a 50-50 tie, followed an effort by Republican lawmakers to block her return to a position she held from 2013 to 2017. She was unanimously confirmed in 2013, but became a lightning rod in several key education debates, including one that looked to hold K-12 schools and universities more accountable for sexual misconduct on campus.��

Education Secretary Miguel Cardona said that Lhamon’s confirmation will help ensure that schools are “fairer and more just.”

“She will lead the Department’s vital efforts to ensure our schools and college campuses are free from discrimination on the basis of race, sex and disability and to protect all students’ rights in education,” Cardona said in a media release. “Catherine is one of the strongest civil rights leaders in America and has a robust record of fighting for communities that are historically and presently underserved.”��

In 2011, before Lhamon became assistant secretary, the Obama administration released a that instructed educators to investigate sexual misconduct allegations “regardless of where the conduct occurred,” and to use a less-strict “preponderance of the evidence” standard when determining guilt. Eight months into her tenure under former President Trump, Education Secretary Betsy DeVos, whose confirmation was secured by a tie-breaking vote by Vice President Mike Pence, rescinded the guidance and replaced it with new Title IX regulations in 2020. The Biden administration the Obama-era guidance.

Civil rights groups have praised Lhamon as a champion for student equity, but her conservative critics have accused her of being an overzealous bureaucrat who went beyond her legal authority during her previous stint on the job.��

In 2014, the civil rights office to warn school districts that discipline policies could constitute “unlawful discrimination” if they didn’t mention race but had a “disproportionate and unjustified effect on students of a particular race.” In June, the to revisit how the Education Department can ensure racial equity in school discipline.��

While Democrats control the White House and both houses of Congress, Lhamon will be taking up her job at a time when battles over race and gender in schools have become even more divisive, as seen in several states recently moving to bar transgender students from playing sports.��

Along with paying $700,000 in damages, the DOE agreed to changes that were designed to make it easier for students to file complaints and render the investigation process more transparent for families. The four plaintiffs, all of them students of color with disabilities, in 2019.

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“By coming forward more than two years ago, four young survivors have profoundly changed a school system for hundreds of thousands of current and future New York City students and families,” Joanne Smith, president and CEO of Girls for Gender Equity, said in a press release.

The New York City district is among multiple urban education systems to face charges that they mishandled or ignored students’ complaints of sexual assault —��a practice groups representing victims argue has gone on for years. The settlement, announced Tuesday by the students’ attorneys at Legal Services NYC, landed as the Biden administration , the federal law prohibiting sex-based discrimination in public schools, and backtracks on Trump-era rules that bolstered the due-process rights of students accused of sexual misconduct.

Amy Leipziger, a senior staff attorney at Legal Services NYC, said the settlement provisions go far beyond those required by federal law. She compared the Trump-era regulations to the “Wild West,” adding that federal officials “could not have made it any less transparent if they tried,” leaving both advocates and educators to “interpret what it even meant.”

But at the local level, that federal ambiguity created “a lot of room for some creative advocacy,” she said. Specifically, she said federal rules are the floor, but don’t prohibit local officials from reaching higher.

“As local advocates and local officials, we can create broader protections and move it up to the ceiling,” she said. “I think that’s our obligation, and that’s something we feel really proud of.”

Among the changes, the city education department will create a process allowing parents to escalate complaints when they believe school officials failed to adequately address abuse allegations, provide support to student victims and update school transfer policies to make clear that students can ask to attend classes elsewhere following instances of harassment or assault. Officials also agreed to create a guide that informs educators about how trauma can affect learning and how special education teams should assess the impact of trauma among children with disabilities.

The lawsuit alleged that the city education department violated Title IX when officials repeatedly ignored assault and misconduct complaints by the students who were between the ages of 12 and 18 at the time of the alleged incidents. Two of the students were allegedly raped by classmates and two others said they were subjected to repeated verbal abuses, groped and sexually assaulted by their peers.

In , a 14-year-old girl with autism reported being raped in a school stairwell by a classmate who, she had earlier told school officials, had abused her off and on for years. In another, a sixth-grade girl with an intellectual disability reported being raped by a classmate in a shed near campus while walking home from school. After reporting a sexual assault, one teacher allegedly told a victim “Oh, he just likes you,” and in another incident, a school dean told a student victim that her perpetrator was just “a touch-feely kind of person.”

Education Department spokeswoman Katie O’Hanlon said the changes will “provide greater clarity to students, parents and staff” regarding the department’s obligations to prevent sexual misconduct and will improve its “effectiveness in preventing and addressing this conduct.”

“Every student deserves to feel safe, welcomed and affirmed in their school and there is zero tolerance for sexual and gender-based harassment of any kind at the DOE,” O’Hanlon said in a statement. “We have made it easier to report harassment and provided more robust trainings for staff so that the strongest safeguards are in place for all students, especially for our students with disabilities.”

For years, the New York City school system has student sexual abuse and misconduct cases. O’Hanlon said the department has hired a permanent citywide Title IX coordinator and seven borough-based coordinators and trained nearly 8,000 school staff members last year on dating violence, student-on-student sexual harassment and gender inclusivity.

The additional changes created under the latest court settlement are a step in the right direction, one plaintiff’s mother said. But the damage is already done.

“Due to that traumatic event, my child suffers every day,” the mother of “Jane Doe,” the student who reported being raped in the school stairwell, . Her daughter remains traumatized by the incident to this day, she said. “She can’t focus as she did before. She lost a lot of interest in a lot of things, she’s depressed, she has nightmares.”

Throughout the Trump administration, federal education officials forced dozens of school districts to revise their strategies to combat sexual assault after uncovering deficiencies. In 2019, Chicago Public Schools reached a sweeping agreement with federal investigators after officials found efforts to combat sexual misconduct in the nation’s third-largest school district ran counter to federal law. At the same time, the Trump administration released revised Title IX rules that bolstered the rights of students accused of sexual misconduct, and although the debate generally centers on how incidents are handled on college campuses, it brought profound changes to K-12 schools. Among them, the regulations narrowed the definition of sexual harassment and absolved educators from investigating most off-campus incidents.

President Joe Biden has vowed to scrap the Trump-era Title IX regulations, and the U.S. Department of Education has to release proposed changes by May 2022. For Leipziger, that timeline is far too long, especially as children return to schools for in-person learning during the pandemic. It’s up to local advocates, she said, to move forward knowing that federal rules don’t preclude school districts from adopting more expansive protections.

“I think our settlement has done that in a lot of ways,” she said. “Every city and every school district and every state is going to have to take it upon themselves to say, ‘We recognize that.’”

Catherine Lhamon is one step closer to being confirmed for the second time as the Education Department’s assistant secretary for civil rights. In a 50-49 vote along party lines, the Senate voted Oct. 7 to discharge her nomination from the Health, Education, Labor and Pensions Committee. The move gives the full Senate an opportunity to weigh her nomination after the HELP committee deadlocked with an 11-11 vote along party lines in August. A date for the full Senate vote on Lhamon’s nomination has not been set.��

From racial discrimination to transgender students in sports, some of the country’s most politically fraught education debates coalesced in a single Senate hearing Tuesday as lawmakers weighed Catherine Lhamon’s nomination to become the Education Department’s top civil rights boss.

Democratic lawmakers portrayed Lhamon, who previously served as the Education Department’s assistant secretary for civil rights during the Obama administration, as a staunch champion of students. Republicans, meanwhile, grilled her with tough questions and accused her of being an overzealous bureaucrat with a habit of exceeding her legal authority. An ongoing debate over how schools should respond to campus sexual misconduct complaints became the leading point of conflict during Lhamon’s hearing.

The Senate education committee hearing, held to consider Lhamon’s likely return to her old job, was divisive from the onset. In his opening remarks, North Carolina Sen. Richard Burr, the committee’s ranking Republican, said he’s not convinced that Lhamon “understands, or at least appreciates, the limits of her authority” and lamented that she would unravel a Trump-era regulation that bolstered the due-process rights of students accused of sexual misconduct.

Though Lhamon maintained a measured posture that leaned heavily on existing law, Burr pressed her on the due process question, including whether students should have the right to see the evidence used against them in misconduct allegations and whether she believes in the “presumption of innocence.” Ultimately, Barr argued that Lhamon’s record on holding schools accountable for students’ sexual misconduct “is deeply troubling if not outright disqualifying.”

In response to question from Sen. Burr, Lhamon again won’t say that she endorses the presumption of innocence; will only say that in “civil rights investigations,” TIX adjudicators “should be open to the possibility” that acc’d students aren’t guilty.

— KC Johnson (@kcjohnson9)

After accusing former Education Secretary Betsy DeVos of rolling back civil rights enforcement for years, Lhamon said on Tuesday that it’s critical for the Office for Civil Rights to return “to even-handed enforcement that is consistent with the law.” In 2011, before Lhamon became assistant secretary, the Obama administration released a that instructed educators to investigate sexual misconduct allegations “regardless of where the conduct occurred,” and to use a “preponderance of the evidence” standard when determining guilt. Eight months into her tenure, DeVos rescinded the guidance and replaced it with new Title IX regulations in 2020. The Biden administration the Obama-era guidance.

Lhamon avoided a direct response to Burr’s questioning, arguing instead that she ultimately “won’t be in control of what change does or does not happen with respect to the Title IX regulation,” as the Biden administration’s work on that issue has already begun. But she did hold that Title IX has long failed to protect students from campus sexual misconduct, and that the Trump-era regulations weakened enforcement.

That acknowledgement came after Sen. Bill Cassidy, a Republican from Louisiana, in which she argued the Trump-era regulations would move the country “back to the bad old days,” when it was “permissible to rape and sexually harass students with impunity.” In defending the tweet, Lhamon noted that the Trump-era regulations narrowed which school officials are required to respond to sexual misconduct allegations. That group includes Title IX coordinators, school officials with “authority to institute corrective measures,” and K-12 teachers in cases of student-on-student misconduct.

“Among the resolutions that I oversaw when I led the Office for Civil Rights included resolutions where, for example, at Michigan State, a student reported that she’d been sexually harassed by a counselor in the counseling office when she went for counseling about sexual harassment,” Lhamon said. “She reported it to the counseling office. Under the current regulation, there would be no responsibility for the school to investigate.”

Lhamon’s nomination hearing also highlighted another Title IX issue that’s been central to recent partisan feuds: The rights of transgender students to participate in school athletics. Under Lhamon’s lead in 2016, the Education Department released a “Dear Colleague” letter notifying schools that transgender students must be permitted to use restroom facilities that align with their gender identities. The Trump administration in 2017.

In a series of questions, Sen. Tommy Tuberville, a Republican from Alabama, asked Lhamon whether transgender girls should be permitted to compete in women’s athletics or if such a policy discriminates against cisgender females. Tuberville, who was the head football coach at Auburn University before joining the Senate, suggested that transgender students could instead be relegated to their own athletic teams.

In response, Lhamon said that Title IX aims to ensure that nobody faces sex-based discrimination in public schools, including any student who wishes to participate in school athletics.

As Republicans probed Lhamon on her policy record, Democrats consistently rallied to support her. In defending the Obama-era guidance on transgender student rights, Sen. Chris Murphy, a Democrat from Connecticut, accused Republicans of waging a “public relations campaign” that isn’t about protecting female athletes but is rather “unfortunately about trying to marginalize these kids and make people fear them and make people see them as a threat.”

“Nothing could be, frankly, further from the truth,” he said. “These are kids who, just like all of our kids, want to participate in athletics, an experience that is central to coming of age for millions of kids all across this country. An idea that we would deny that to anyone in this nation simply because of their [gender identity], I think, is deeply unAmerican.”

Along with the guidance on transgender students’ rights, Lhamon’s tenure with the Obama administration included a “Dear Colleague” letter from 2014 which warned schools that racial disparities in school discipline could violate federal civil rights laws. The Trump administration did away with that guidance, too, but Lhamon said on Tuesday that it’s “crucial” for the Biden administration to reinstate it. In fact, she noted that when the civil rights office was created in 1979 partly to enforce federal school desegregation orders, racially disparate school discipline rates were among the first issues that investigators confronted.

That racial disparities in school discipline persist to this day “means that we have not gotten our arms around it as a country and we are not doing enough right by our kids,” she said, adding that racial disparities are not always a form of discrimination. “I think it’s crucial to reinstate guidance on the topic and I think it’s crucial to be clear with school communities about what the civil rights obligations are and how best to do the work in their classrooms.”

Though Tuesday’s hearing centered primarily on Lhamon, lawmakers also considered the nominations of Lisa Brown as the Education Department’s general counsel and Roberto Rodriguez as its assistant secretary for planning, evaluation and policy development. Brown is currently the general counsel of Georgetown University and Rodriguez is the president and CEO of the nonprofit Teach Plus. On average, takes 68 days between their nomination and a final Senate vote, according to the nonpartisan Congressional Research Service.

Title IX’s protections against sexual discrimination and violence extend to gay and transgender students, the U.S. Department of Education announced Wednesday in an interpretation of the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County. (The full notice is embedded below)

Acting on statements Education Secretary Miguel Cardona has made since he was nominated, the department’s notice reinforces that “on the basis of sex” includes sexual orientation and gender identity. The few tense moments Cardona has had in hearings before Congress so far have involved questions from Republicans over whether transgender girls should be allowed to compete against biological girls in high school and college sports.

“Today is an important milestone in the struggle to recognize the rights of LGBTQ+ students, one that we mark with pride,” Suzanne Goldberg, acting assistant secretary for civil rights, wrote in a .

Last week, the department’s Office for Civil Rights held a five-day public comment period on a revamped Title IX rule, and stressed that officials were especially interested in hearing from those who have experienced harassment because of sexual orientation and gender identity.

In a statement, Congressman Bobby Scott, a Democrat from Virginia and chair of the House education committee, said “LGBTQ students will have strong and clear legal protections from discrimination in schools, and a safe learning environment.”

According to , it’s unclear how the notice will impact states that have passed legislation banning trans students from competing against girls.

Today’s full release:

A group of girls from Berkeley High School will go before a federal judge in California this Thursday to argue that former Education Secretary Betsy DeVos left victims of sexual assault or harassment with fewer protections and shielded those accused of misconduct.

The state of Texas, led by Republican Gov. Greg Abbott, has tried to join the case as a defendant, arguing President Joe Biden’s justice department won’t provide a “robust defense” of the DeVos’s interpretation of the rule, known as Title IX, because it has “expressed open hostility to the provisions.”

As it happens, the San Francisco court is hearing the case just as Biden’s education department launches a weeklong public comment period on the future of Title IX — a key step in the administration’s promise to rewrite the controversial rule.

But the process this time is more than just a chance for Democrats to wipe away what DeVos said would be her . The U.S. Supreme Court’s 2020 protecting gay and transgender employees against discrimination — and the justice department’s that the opinion extends to schools — shows that the policy landscape has grown more complicated than it was even in 2017.

“The stakes have always been high,” said Liz King, the senior program director for education at The Leadership Conference on Civil and Human Rights. “This is a question of whether or not students will have access to an education free from discrimination.”

The White House is signalling the importance it attaches to the measure by the extensive time it is granting for public input and by its intention to bring back an expert hand who was instrumental in writing guidance that held colleges responsible for addressing on-campus sexual violence.

An ‘effort in public engagement’

While she’s not yet been confirmed, Catherine Lhamon is poised to return to her former position as the education department’s assistant secretary for civil rights. Lhamon has briefly served as deputy director for racial justice and equity on the White House Domestic Policy Council. Her nomination “shows how serious the Biden administration is taking civil rights,” said Shiwali Patel, senior counsel with the National Women’s Law Center.

The especially wants to hear this week about discrimination based on sexual orientation and gender identity, according to the notice.

Civil rights attorney Seth Galanter, with the National Center for Youth Law, called this week’s hearing “an extraordinary effort in public engagement.”

“As far as I know, there’s not been public hearings held around Title IX since the 1970s, when the department was first issuing regulations,” said Galanter, who is representing the Berkeley students. “It will be a great opportunity for people who don’t normally participate in the notice-and-comment process to have their voices heard directly by the leadership of the department.”

DeVos held one day of to hear from victims of sexual harassment and assault and from men’s rights groups that argued some students had been being falsely accused of misconduct.

On Zoom ‘with a harasser’

Before DeVos finalized the current rule, over 124,000 public comments were submitted, with many in opposition. Multiple lawsuits — including one involving and the District of Columbia — were filed in protest.

In the Berkeley students’ case, the complaint said victims are often assigned to the same classrooms as the students who sexually assaulted them off campus and that remote learning hasn’t alleviated the trauma that some victims experience.

“Even when learning takes place primarily online, as it does this school year due to COVID-19, victims are required to be in small video ‘breakout rooms’ with their harasser,” according to the complaint.

The justice department said Texas has no “claim or defense” in the Berkeley case. The state made the same argument in opposing the DeVos rule in Massachusetts, but a federal judge denied the motion. The state, however, successfully intervened in the multi-state case, now on hold as the administration works to rewrite the regulation.

Others don’t want to see the DeVos rule torn down because they say it recognizes the rights of those unfairly accused of sexual misconduct.

Reversing the rule could “once again force schools to deprive accused students and faculty of constitutionally guaranteed safeguards like the right to confront the evidence used against them,” said Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance. He added that despite multiple federal courts upholding due process in campus disciplinary hearings, “the department seems poised to ignore those bedrock constitutional principles.”

As Kruckenberg noted, federal courts in recent years have shown greater deference toward the accused, agreeing that some colleges demonstrated against males when handling complaints. But Patel, whose organization is representing plaintiffs in the Massachusetts case, said institutions can protect due process rights while still providing fairness to victims.

“Sexual harassment is very pervasive in K-12 schools,” she said, “and rather than requiring schools to do more reporting, the DeVos changes swept sex harassment under the rug.”

released last year showed incidents of sexual violence in K-12 schools increased by more than half between the 2015-16 and 2017-18 school years, and the number of rapes or attempted rapes increased from almost 400 to nearly 800.

The DeVos rule limited what counts as sexual misconduct under Title IX. School officials, for example, are no longer obligated to investigate incidents that occur , but with virtual school, that distinction is less clear. In a recently issued , the department indicated that schools must investigate complaints of discrimination or harassment that occur during remote learning.

Disagreement over Title IX is one reason why Congress didn’t reauthorize the Higher Education Act while former Sen. Lamar Alexander chaired the education committee, leaving both the Trump and Biden administrations to implement the policy through regulation. That means if a Republican administration returns to the White House in four years, the pendulum could swing back the other way.

The back-and-forth over the policy probably means that no matter what happens, the issue is destined to continue to play out in court.

“We’ll have to wait and see what the Biden administration does,” said Kenneth Marcus, who led the Office for Civil Rights under DeVos. “But if they repeal the Trump Title IX regulations and replace it with something that looks more like the Obama rules, then we will certainly see this either struck down by the courts or reversed as soon as Republicans regain control.”

‘A different landscape’

The comment period is also taking place as debate continues to escalate over whether transgender girls should be allowed to compete against biological girls in high school and college sports — a question Title IX didn’t previously address.

“This is a different landscape than it was in 2016,” when President Donald Trump was elected, said Sasha Buckert, a senior attorney with Lambda Legal, a civil rights organization focusing on LGBTQ issues. “The court has weighed in.”

The day he took office, President Joe Biden issued an regarding the U.S. Supreme Court’s workplace discrimination ruling in , stating, “Children should be able to learn without worrying about whether they will be denied access to the restroom, locker room or school sports.”

But at least 20 states are considering or have already passed legislation banning students born biologically male from competing against females. And the issue has sparked heated exchanges between Republicans and Education Secretary Miguel Cardona the two times he’s appeared before Congress.

“We can create transgender leagues, I don’t mind,” Congressman Andy Harris of Maryland told Cardona during an appropriations on the federal budget in early May. He added that his daughter is an NCAA all-American athlete, who in no way “could compete against biological males,” and that he was disappointed in Cardona’s stance on the issue.

The NCAA isn’t considering separate leagues, but does testosterone suppression treatment for transgender women to compete in women’s sports at the college level. High school athletic associations began allowing trans girls to compete in events for girls over , and some experts argue there’s of trans women dominating women’s sports.

Cardona hasn’t veered from the firm position he took during his confirmation hearing. “Transgender students deserve every opportunity to participate in all school activities,” he told Harris.

Republicans have introduced the , which would only define sex under Title IX as those born male or female, not gender identity. But the House has already passed , which would extend civil rights protections in housing, education and employment to LGBTQ people and mostly clarifies what the courts have already decided, Buckert said.

If passed, the bill “would hopefully prevent all of these lawsuits and would prevent [the Supreme Court] from creating some kind of horrific carve-out in Title IX,” she said, adding she’s concerned Congress could say “discrimination against transgender people in general is against the law, but not in athletics.”

The first push came from the president, who on his first day in office calling for federal agencies to root out discrimination based on gender identity and expression, including in public schools. In February, the administration also for litigation filed in Connecticut by a group of high school runners who argue that their rights under Title IX were violated by the state’s policy of allowing trans girls to race against them.

Republicans picked up the gauntlet happily, with introducing bills to require K-12 athletes to compete in the gender category that they were assigned to at birth. Governors in , , and have all signed such laws, which have also passed in at least one chamber of state legislatures in , , , and . After a split between Republicans in South Dakota, Gov. Kristi Noem along the same lines.

Beneath the political stakes lie swiftly changing legal and cultural mores, which are themselves being reshaped by new discoveries on the biology of athletic performance. In all, the status of trans athletes — and particularly the question of whether trans females should be allowed to compete in the girls’ category in high school competitions — has been taken up by combatants on all sides of America’s ongoing debate over the politics of sex and gender. Meanwhile, as the fight moves from playing fields to legislative chambers and courtrooms, advocates are attempting to strike a compromise between the necessities of competitive fairness and inclusion.

That balance has begun to develop at the pinnacle of elite sport, with regulatory bodies like the and the reaching accommodations that allow trans women to participate under specific conditions — typically including measures to suppress their bodies’ production of testosterone, which is linked to performance attributes like speed, power, and endurance. But adolescence, when many trans children are still early in their social and physical transitions, is a far more ambiguous stage.

Joanna Harper, a sports researcher at England’s Loughborough University and herself a trans runner, observed that various proposals to address the issue for teenagers all come with downsides. In an interview, she set a goal of “being as inclusive as we can possibly be without destroying the competitive balance.”

“It’s so hard,” said Harper. “How do you tell a 15- or 16-year old that they have to go on hormone therapy to play sports? It’s an extraordinarily difficult thing to say, but for these very high-performing athletes, it does create a conundrum.”

To others, one consideration supersedes all others: the need to welcome trans children into all aspects of school life, including sports. Melanie Willingham-Jaggers, the executive director of the advocacy group GLSEN (previously known as the Gay, Lesbian, and Straight Education Network), said that no claims around competitive fairness could justify treating trans students any different from their cisgender peers (i.e., those whose gender identity matches their sex assigned at birth).

“To use words from another civil rights fight, we know that anything separate is not equal. We know that when we start differentiating across lines of identity, young people will not be served by that.”

A ‘patchwork’ system

But according to Doriane Lambelet Coleman, sex differentiation is vital to the survival of women’s athletics. A professor at Duke Law School, Coleman is the co-director of the institution’s Center for Sports Law and Policy. She is also a former collegiate track champion who has worked in both American and international settings to develop anti-doping policies and rules determining eligibility for women’s competition.

Coleman that Title IX, which forbids sex-based discrimination across all federally funded educational programs, clearly mandates the segregation of athletes into categories according to sex-linked traits. Since its very purpose is to provide women and girls with the same access to athletic opportunity that boys have always enjoyed, forcing cisgender females to contend with rivals whose bodies lend them a competitive advantage effectively “[defeats] the purposes of the institution that is girls’ sport.”

“We need legislation that affirms the commitment to girl’s and women’s sport, and specifically to this set-aside of separate-sex teams on the basis of biological sex,” Coleman said. “It was never in doubt before that that’s what separate-sex sport meant, but now that it is questioned, we need to re-affirm that commitment.”

But Coleman also rejects the legal barriers being proposed and passed by Republicans, calling them overbroad. Some exceptions need to be drawn for trans girls and women who have undergone hormone treatment, or who transitioned before the onset of male puberty, she added.

The legislative push at the state level began almost exactly a year ago in Idaho, which flatly banned trans females from playing on girls’ teams at K-12 and post-secondary schools. In instances where doubt existed about an athlete’s biological sex, it would be resolved by an examination of “the student’s reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels,” the text read. (The law was by a federal judge last summer, and litigation is still pending.)

As the legislation moves through statehouses around the country, students are facing an increasingly divided picture of athletic eligibility. , 16 mostly socially progressive states currently allow trans girls to compete in the category that matches their gender identity. Among the rest, some require they take medically prescribed hormone therapy, some require them to adhere to their natal sex, and some offer no recommendation.

Willingham-Jaggers referred to the sharp differences between different jurisdictions as a “patchwork” system that cries out for national clarification. In her view, that should come through the passage of the Equality Act, a federal bill that would amend existing civil rights law to prohibit discrimination in housing, education, and employment on the basis of gender identity or sexual orientation. The Act in February, and Senate Majority Leader Chuck Schumer has already announced that it will be brought to the upper chamber for a vote.

Federal action is warranted because of the anxiety that trans students often feel about athletic participation, Willingham-Jaggers said. According to , over 10 percent of LGBT students feel discouraged from participating in sports because of their gender or sexual orientation. Forty-four percent of respondents said they avoided locker rooms because they felt unsafe or uncomfortable, 40 percent avoided gym or physical education classes, and 25 percent avoided athletic facilities.

“What happens when we discourage or intentionally exclude young people who are non-binary or transgender from sports [is that we] lock them out of all the positive effects that sports have on all young people — cis, trans, or non-binary,” Willingham-Jaggers said. “What is right for all students is also right for trans students.”

‘It’s no longer about sex’

Given the tiny margins Democrats now hold in Congress, neither the Equality Act nor any other federal legislation centered on trans youth looks likely to pass this session. While the possibility of regulatory reform still exists — the Justice Department recently stating that LGBT students would be protected under existing civil rights laws that prohibit discrimination based on sex, including Title IX — policymakers and educators still face the question of how the rights of trans and cisgender girls can be reconciled when they come into conflict.

For some experts, hormone therapy is a necessary part of any solution, at least at the most competitive levels of women’s sport. In recognition of changing norms, leading regulatory bodies like the NCAA and International Olympic Committee have created policies that require trans females to undergo estrogen or testosterone-suppression therapy before they can become eligible for women’s events.

Though she condemns the outright bans now under consideration in U.S. legislatures, calling them politically motivated, Loughborough University’s Harper said it was “perfectly reasonable” to place some restrictions on the participation of trans women in competitions.

As evidence, she cited the example of June Eastwood, a University of Montana runner who the first openly trans female to compete in a Division I cross-country meet. Eastwood completed the prescribed course of testosterone suppression during her transition, and generally proved a high-level if unspectacular performer in the women’s division. Had she not undergone the treatment, however, she might have easily dominated her sport; while running in the men’s category, Eastwood’s personal best in the 1500 meters was just a fraction of a second behind the women’s world record.

“Successful trans girls who have gone through male puberty, who have experienced all the gains that gives them and are good at their sport, will simply be too good, too successful in girls’ sports, unless you require them go through hormone therapy,” Harper said.

A less hypothetical case came during the 2016 Olympics, when all three medalists in the women’s 800 meters event were either known or suspected to have that produces both X and Y chromosomes in women. With testosterone levels that far exceed that of typical female athletes, those runners to undergo treatment to reduce their testosterone in order to enter women’s events between the quarter-mile and the mile.

But what is possible at elite levels of competition might not be workable in high school. Not all trans children have access to hormone therapies, and requiring them as a prerequisite for athletic participation could inadvertently distort students’ decisions around gender transition. To make things even more complicated, Republican legislators in several states bans on minors receiving “gender-affirming health care,” a treatment method that can recommend the use of puberty blockers and hormone replacement. In Arkansas, the first state to such a ban, Republican Gov. Asa Hutchinson issued a veto on Monday only to the next day. If other states take the same approach, many transgender youth could be faced with a Catch-22 scenario: needing hormone therapy to compete in sports according to their gender identity, but being prohibited from receiving them.

All of it combines to make high school sports a particularly challenging space to adjudicate.

The best-known conflict within the realm of K-12 sports is now playing out in Connecticut, where have sued the state in federal court for permitting trans athletes to run track against cisgender girls. Between 2017 and 2019, those trans girls, Terry Miller and Andraya Yearwood, combined to claim 15 state championship races. While former Attorney General William Barr formally backed the lawsuit, calling Connecticut’s policies “fundamentally unfair to female athletes,” the Justice Department under President Biden .

In part, the debate hinges on interpretations of Title IX, which was enacted nearly a half-century ago with the express purpose of in educational settings like sports. At the time of its establishment, school districts and universities directed their athletic budgets overwhelmingly toward male sports, and the concept of transgender identity was mostly outside the mainstream. By some estimates, participation in girls’ sport has increased by over 1,000 percent in the decades since. At the same time, the law permits “separate teams for members of each sex where selection for such teams is based upon competitive skill.”

Duke’s Coleman sees the increasing social acceptance of LGBT communities as a positive development, but warns that it likely will also generate more such cases if states like Connecticut don’t carefully insulate the category of cisgender girls. Otherwise, she argued, it could drift into something like an open division freely entered not only by trans girls, but also gender-fluid and nonbinary competitors, and even trans boys who are actively taking testosterone but still permitted to compete against females.

“It’s no longer about sex; it’s not about sex-linked hormones; and it’s not even about gender identity, since trans boys can stay in,” Coleman said. “So I can’t even describe that group anymore. And if you can’t describe that group, who’s going to fund it? And if people continue to fund it, how will it stand legally? It no longer has integrity or a purpose that we can identify because you’ve let everybody in, essentially.”

Culture war fodder

Only a handful of states have so far restricted access to girl’s and women’s sports exclusively to natal females, and all are among the most Republican-leaning in the country. At the national level, Republican Senators and have both called for similar measures.

David Hopkins, a political scientist at Boston College whose research focuses on U.S. political parties, said that the GOP seems to be coalescing around the proposal out of a recognition that LGBT acceptance remains “a controversial, uncomfortable issue for a lot of voters.”

“Republican politicians, who are increasingly oriented toward cultural as opposed to economic causes, have been looking for ways to translate the culture war into policy and legislation,” he continued. “So much of the culture war is actually not about what the government does, but here’s a case where it can be.”

While that much of President Biden’s agenda is reasonably popular, the polling also suggests an area of softness around the issue of trans athletes. According to a 2019 poll from Morning Consult, agreed that transgender women possessed an athletic edge over other women. , administered last month, found that 53 percent of registered voters supported a ban on trans athletes in women’s sports. Even among Democrats, just 42 percent of respondents said they would oppose such a ban, compared with 40 percent who would support it.

Aside from those figures, state-level Republicans are likely reading signs from former President Donald Trump, during his speech at February’s CPAC convention that “women’s sports as we know it [sic] will die” if restrictions aren’t adopted. In the same way that some lawmakers adopted Trump’s hatred of the New York Times’s 1619 Project, and are now its associated curriculum from use in public schools, they are now attaching themselves to another highly charged topic whose salience he has recently elevated.

But few if any elected Democrats have vocally opposed allowing trans women and girls to compete in sports according to their gender identity rather than their biological sex. Of the 16 states where official guidance recommends that course, all but one — Florida — has voted for the Democratic candidate in the last four presidential elections. This too reflects the partisan and geographic polarization at work, Hopkins argued.

“You don’t have a faction in the Democratic Party that’s pushing back against that,” he said. “They’re not worrying about carrying Senate races in South Dakota or Arkansas anymore because they’re out of the game in those states. That has really contributed to the culture war polarization between the two parties: Neither party is really trying to compete in the parts of the country that, culturally, are on the other side.”

The , scheduled to take effect Aug. 14, newly limits the cases in which K-12 schools and colleges are required to investigate allegations of sexual harassment on campus. It strengthens due-process protections for accused students and says that institutions must intervene only in cases sufficiently “severe, pervasive and objectively offensive” to obstruct access to education. It additionally clarifies, for the first time, that stalking and dating violence are covered by Title IX protections.

Lead plaintiffs Josh Shapiro of Pennsylvania, Xavier Becerra of California and Gurbir Grewal of New Jersey, as well as the other attorneys general, filed the lawsuit in federal court, naming not only the education secretary but also the Department of Education and the United States of America as defendants. In court documents, they ask the court to put the Aug. 14 effective date on hold pending judicial review, and to “vacate and set aside” DeVos’s rule.

If the rule goes into effect, they say, students will have reduced protections against predatory behavior when they return to classrooms in the fall or at some later point, depending on COVID-19, ultimately undoing “decades of effort to end the corrosive effects of sexual harassment on equal access to education.” They add that the ruling’s timing is unreasonable because it leaves schools and colleges just three months to revamp their sexual misconduct review systems, with diminished resources during a global pandemic.

“If any student experiences sexual harassment, or if any student is accused of committing sexual harassment, they deserve a fair process,” Jacklin Rhoads, a spokesperson at Josh Shapiro’s office, told the 74. “But Secretary DeVos has chosen to issue regulations that narrow Title IX’s protections. She has also chosen to impose a prescriptive process on all schools that is both inequitable and unfair — especially for primary and secondary schools.”

U.S. Department of Education press secretary Angela Morabito derided the complaint in an emailed statement, calling it “a political press release masquerading as a lawsuit.”

“The new Title IX rules protect all students by requiring schools to follow a reliable, transparent, and fair process in handling complaints of sexual misconduct,” she wrote.

But the attorneys general and other leaders from around the country worry that the new regulations, and their rushed timing, will muddy the waters for schools and colleges, further deterring survivors from reporting sexual assault. According to a 2016 U.S. Department of Justice , almost 80 percent of all rapes and sexual assaults go unreported.

Joel Levin, a co-founder of Stop Sexual Assault in Schools, is concerned about the changes burdening K-12 schools in particular, given that they’ve historically struggled to adjudicate allegations due to a relative lack of resources and institutional knowledge.

“It creates a nightmare for K-12 schools,” he says, adding that since the rule was passed in May, he’s been in touch with families and Title IX coordinators at schools around the country. “By changing the definition of sexual harassment, you contradict local policies and state laws —��that creates a big headache for implementation.”

Thursday’s lawsuit is the latest addition to a growing chorus of protest condemning the new policy. One week after the regulations were finalized last month, the ACLU DeVos, the Department of Education and Kenneth Marcus, the department’s assistant secretary for civil rights. Four nonprofits were named as plaintiffs: Advocates for Youth, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools. In late May, Rep. Jackie Speier, a Democrat from California, with more than 100 House members’ signatures to DeVos, urging her to rescind the rule. The chair of the U.S. Commission on Civil Rights, Catherine Lhamon, wrote in a that DeVos is “taking us back to the bad old days … when it was permissible to rape and sexually harass students with impunity.”

Although the policy was only just finalized last month, it’s the culmination of efforts DeVos in overhauling Title IX protections since she assumed office in 2017. The draft regulations were introduced in 2018 and posted for public comment, drawing 124,000 remarks from schools as well as survivors and proponents of due process.

The new regulations require that colleges hold live hearings, wherein students accused of misconduct can submit, cross-examine and challenge evidence. Such hearings aren’t mandated at the K-12 level. Schools are allowed to choose which standard of proof to apply to allegations: the “preponderance of evidence” standard used during the Obama administration, or the higher “clear and convincing” standard.

Title IX was enacted in 1972 to ensure that students have access to education without being discriminated against on the basis of sex. It was a critical but broadly defined mandate, and it wasn’t until several decades later, in the 1990s, that the Education Department started to clarify the law’s implications for on-campus sexual harassment through a series of directives that would continue to be published during the Obama administration. The “Dear Colleague” letters, so called because of the way they addressed K-12 school and college leaders, spelled out that on-campus sexual harassment is a form of sex-based discrimination under federal law, and that it is prosecutable under Title IX.

Because recent data on sexual assault among school-age children aren’t available from the federal government — the most current information shows that, as of 2015-16, elementary and secondary school students about 9,700 incidents of sexual assault, rape or attempted rape — it’s hard to know if those numbers have increased or decreased during DeVos’s tenure. According to conducted by NBC News last month, at least 330 lawsuits have been filed nationwide since the start of 2018, alleging that K-12 schools either failed to protect students from sexual misconduct or bungled relevant investigations.

Advocates fear that the new policy will confuse matters further by creating a discrepancy between state and federal definitions of “sexual harassment” —��according to DeVos’s rule, the updated federal definition will override any determined at the state level. They explain that the changes mean allegations of harassment under Title IX will be regarded with more skepticism than those alleging discrimination based upon race or disability. And they worry that the new policy will force institutions to have two parallel, separate systems for managing sexual assault claims: one for those covered by the new regulations and another for claims that don’t meet that definition.

Levin says the policy creates an administrative problem because it leaves open the question of who decides which cases fall under Title IX, as well as what procedures exist for the cases that don’t meet that threshold. “How do they determine whether the threshold is met?” he asks. “How do they decide the difference between what constitutes ‘severe’ for a second-grader, as opposed to a high school student? Someone will have to make that determination.”

Like other advocates, he’s concerned that the changes could have a chilling effect on students reporting incidents of harassment. “It’s disturbing,” he says. “By creating these barriers, the administration is making it more difficult for students who are reporting sexual harassment, and those that have been named as harassers. That’s against the spirit of Title IX.”

Levin also points to something that hasn’t been mentioned in the suits —��that perhaps the part of the new rule allowing K-12 schools to hold hearings to adjudicate Title IX cases if they so choose might also deter students from reporting. “I think that’s another inhibitor here,” he says.

The Department of Education has 60 days to file a reply to the complaint; as of yet, it’s unclear whether the court will delay the rule’s scheduled effective date, and whether or not it will issue a preliminary injunction against one or more provisions in the new regulations. In the meantime, Levin says he expects to continue fielding questions from confused families.

“Title IX is complicated to understand,” he says. “Now these new regulations throw us for a loop.”

For two decades, Chicago Public Schools had no Title IX coordinator, meaning there was no one in charge of making sure that the nation’s third-largest school district didn’t botch sexual assault and harassment cases involving students. And the of an extensive federal review, unveiled last week, showed what went wrong when no one was paying attention.

Sexual misconduct investigations by CPS often were never finished. The district regularly failed to provide any help — like counseling — to victims of sexualized attacks and harassment. When a female student said she was raped by a dozen teenagers, including seven male classmates, and asked the district to move her attackers to another school, her dean replied that “it would be easier” if she was the one who left the school instead.

Teachers with the district after they harassed students, including one who solicited nude photos from students, and another who said that a student looked like they had “a mouthful of cum” in their self-portrait. In one case, a teacher kept his job for 20 years amid consistent complaints that he harassed children, but students who reported him were told by administrators they needed more evidence. Multiple school security guards, the people charged with keeping kids safe on campus, touched female students inappropriately.

Secretary of Education Betsy DeVos CPS’s failures “widespread, glaring and heartbreaking,” while Kenneth Marcus, the top civil rights official at the department, said the district’s handling of sexual assault cases was “one of the worst” he’s seen among K-12 school districts.

“We cannot permit this to recur in Chicago or anywhere else,” Marcus told reporters last week, adding that “this case may be a wake-up call” for other K-12 schools.

While the damning findings against Chicago Public Schools were notable for their size, scope, and egregious nature, the district is not an anomaly. K-12 schools across the country have given short shrift to their Title IX coordinators — if they have them at all — and as a result are mishandling sexual violence cases. Experts were glad that the department put a spotlight on what CPS did wrong, but they wondered why it hasn’t done that in other cases, and they warn that these failures will continue if the federal government doesn’t keep calling out schools that violate Title IX.

“It’s not isolated to Chicago, but I don’t think the public really understands that,” said John Shields, a research scientist with ETR, a nonprofit that evaluates how schools deal with Title IX issues. He noted that when DeVos gave her only about Title IX, she focused on due process rights at the college level and never mentioned K-12 cases. “There is an opportunity for DeVos and the president to speak out on this issue,” Shields said.

It’s not that the U.S. Department of Education has just been blowing hot air. Under DeVos, the department has forced dozens of schools across the country to change how they deal with sexual assault cases after feds discovered Title IX violations, according to documents obtained by The 74. The department found that public schools in major cities like Detroit and Washington, D.C., had no investigation procedures under Title IX — even though it’s been since the Supreme Court ruled that the gender equity law requires schools to address sexual violence impacting students.

Federal officials did not properly conduct investigations into several cases, including a male student who admitted to raping a female student; two male students who trapped a female student in a room and fondled her; a male student who warned a female student, “I will rape you,” if she reported him for slapping the butts of girls at school; and members of a soccer team who allegedly inserted their fingers into the rectum of a boy on the team.

But the public — and those families with kids in these schools — often have no idea when the feds discover Title IX violations. That’s because under the Trump administration, the department publicizing when it finds schools dropping the ball on Title IX. It changed its practice this month by putting out and holding calls with reporters upon into CPS and Michigan State University’s handling of Larry Nassar’s crimes.

“The problem with burying their decisions and making them difficult to access is, there is a general lack of awareness of using Title IX as a level to ensure your school is properly addressing these,” said Elizabeth Meyer, a University of Colorado Boulder professor. If the federal government made more public pronouncements when it finds Title IX violations, Meyer told The 74, “it would definitely raise the profile and awareness of what schools are supposed to be doing.”

Title IX typically falls low on the list of priorities for district administrators, Meyer said, so they aren’t going to spend time on it until they’re faced with a crisis or activism. In Meyer’s , she found that sometimes Title IX coordinators don’t even know they’re the Title IX coordinator.

And it’s not just an issue for small districts with a limited number of administrators. While Chicago went two decades with no Title IX coordinator at all, the New York City Department of Education, the nation’s largest school district, had only one temporary coordinator for all 1.1 million students until this year. After teens — and following �� and documenting failures during Mayor Bill de Blasio’s tenure — the city finally approved funding to hire more than one Title IX coordinator to oversee how its schools handle sexual misconduct.

“District bureaucracies have tremendous inertia,” said Joel Levin, co-founder of the advocacy group Stop Sexual Assaults in Schools. “And unless spurred by an adverse regulatory finding, lawsuit or bad press, [districts] will do little to improve their sexual misconduct training, policies and procedures.”

Many of the problems at CPS were detailed . The government probe predated the articles by three years, but federal investigators were interested in knowing how the district to the articles internally, according to the Tribune. The district hired consultants to audit how it deals with these issues; they concluded that CPS “has not been effective in preventing and responding to sexual misconduct” and had problems “at all levels.”

In the 2018-19 school year, CPS allocated a $2.5 million for a new district Title IX office. The office has already documented more than 3,000 sexual misconduct incidents involving students and has investigated more than 500 cases on top of guiding 1,600 other school-based investigations, according to CPS records.

“It seems in this case, the only thing that spurred them to action was the Tribune’s exhaustive research and documenting all the ways they failed their students,” said Ashley Fretthold, a lawyer with Legal Aid Chicago who represented students in Title IX cases in the district. “I think parents and students and other community members need to ask these questions — What are you doing in response to these complaints?”

Meyer said parents could lay a lot of groundwork for improvements in this area before a scandal by simply calling their district office or writing the superintendent to ask basic questions like, “Who is our Title IX coordinator?”

“If we have lots of people calling and raising it to the attention of leaders,” Meyer said, “then it’s harder for them to ignore the issue.”