Following significant delay and conflict, the U.S. Department of Education issued a new set of final Title IX Regulations regarding sex discrimination on April 19, to go into effect Aug. 1, 2024. The 1,557-page Final Rule containing the regulations is available for review at the department’s website, along with a fact sheet, summary of key provisions and a resource for drafting related policies.
The new regulations broaden the scope of Title IX’s protections by adding sexual orientation, gender identity, sex stereotypes and sex characteristics as protected characteristics. Though the new regulations do not specifically address transgender and gender-nonconforming student participation in athletics, they do prohibit policies and practices that prevent a person from participating in an education program or activity consistent with their gender identity.
Brian Dittmeier, policy director at GLSEN — a national organization that works to ensure safer, more inclusive schools for LGBTQ youth — said that more than four in five LGBTQ youth report being victimized in school, either through harassment, bullying, discrimination or even assault, yet 62 percent of LGBTQ youth who have been victimized in school say they have never reported an incident to school staff.
“A piece of that may be that students do not understand that they are protected under the law from a hostile learning environment,” Dittmeier said. “And so, with the April 2024 final rule on Title IX, we see updates that have explicitly enumerated sexual orientation, gender identity and sex characteristics to ensure that LGBTQ students know that Title IX provides remedies should they be facing a hostile learning environment or discriminatory policies in the school, and an important piece of that as well is clarification around sex-separated spaces and the Title IX updates. Title IX is quite clear that students should be treated in a manner consistent with their gender identity.”
Administrators should proactively review everything from their restroom access to dress code policies, making sure that they’re in compliance with the law, he continued.
GLSEN has checklists available on its website for both state and local educational agencies that could help identify policies that may not come to mind immediately. For example, Dittmeier said, a school district in Pennsylvania was investigated by the U.S. Department of Education in 2022 after a boy was reprimanded for wearing an earring, which was allowed under the dress code only for girls.
While the district worked quickly to update its dress code policy, “it shouldn’t necessarily be on individual students to pursue an enforcement process to bring about that conclusion,” Dittmeier said. “And especially now that Title IX has been updated, school districts should work proactively to check all of these different policies, and we’ve got many of them listed out in our checklist so that the policies are updated, and the schools are already moving to building that safer and more inclusive learning environment.”
California law
Under the California Healthy Youth Act, LEAs are already required to provide students with integrated, comprehensive and accurate sexual health education and HIV prevention education, at least once in high school and once in middle school, and must be inclusive of LGBTQ students. Schools must teach about all sexual orientations and what being LGBTQ means. The act also prohibits sexual health education classes from promoting bias against anyone on the basis of any category protected by Education Code Section 220, which includes actual or perceived gender and sexual orientation.
California law also already prohibits discrimination on the basis of gender, gender identity and gender expression, and the state’s FAIR (fair, accurate, inclusive and respectful) Act requires the inclusion of a study of the role and contributions of, among other groups, “lesbian, gay, bisexual, and transgender Americans … to the economic, political, and social development of California and the United States of America, with particular emphasis on portraying the role of these groups in contemporary society.”
Still, Dittmeier said, “even in places that you would think are supportive, there are still older policies on the books that simply may not have been looked at. It’s a prime opportunity for all sex-based distinctions to be re-evaluated to make sure that everything is in compliance.”
Additionally, he noted, Title IX is simply the floor of what is legally required, and there are so many opportunities to go beyond what Title IX requires to build an inclusive learning environment.
For instance, GLSEN recommends building robust anti-bullying policies in schools that place special focus on the basis of sexual orientation, gender identity, sex characteristics and so on to highlight behavior and conduct that won’t be tolerated in schools.
To address high rates of underreporting, schools could also proactively lift up complaint processes and communicate to students how they can seek relief when they are experiencing harassment and bullying.
“Training, and building a pipeline of diverse educators as well, is key to ensuring that there’s a workforce that understands the supports that LGBTQ students may need,” Dittmeier continued. “And then a final piece is to support youth-led safe spaces that empower LGBTQ youth such as gay-straight alliances or gender-sexuality alliances, which I know are quite common in California schools, but also there are other opportunities to empower LGBTQ youth — finding opportunities for students to really explain and be part of developing solutions that reflect the issues they’re facing.”
