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New Transgender Protections Put Schools at Heart of Culture War

June 24, 2022, 4:10 PM

Schools fear being caught in a culture war crossfire between red states and the federal government, after the Biden administration proposed extending Title IX protections to transgender students.

The Biden administration’s Thursday proposal expands protections for sexual orientation and gender identity under the federal civil rights law to better protect transgender and non-binary students—a first effort in addressing trans rights within the measure.

It follows several anti-LGBTQ+ policies out of states such as Texas and is part of the White House’s recent pledge to protect and support the LGBTQ+ community. This isn’t the first time educational institutions have to balance what the federal government says and what states want. Florida enacted its “Don’t Say Gay” law in March, which limits discussion of sexual orientation and gender identity in schools, and Texas officials in February wanted gender-affirming care for transgender children to be reported and investigated, calling it abuse.

The tension between state and federal restrictions will once again trickle down to schools, said Lynn Pasquerella, president of the American Association of Colleges and Universities.

“It creates enormous moral distress when you feel like you’re being coerced into doing something you believe is unethical, but you think you have no choice,” she said.

“Imagine being in a public institution, in Utah, Idaho, Arizona, Texas, or Florida, for example, and you’re now complying with the federal regulations that say you have to respect trans rights, it’s not likely that you’re going to keep your appointment, if your appointment is a result of a governing board that is itself politically appointed. So I think these same issues will arise, and it will lead to even greater moral distress on the part of campus leaders who are trying to navigate between what the federal government is saying, what state governments are saying, and what their constituencies are saying on college campuses.”

The Department of Education said in a statement it would issue a separate rule regarding Title IX mandates that apply to school athletics.

“It really forces schools to take a step back and understand that they have to be treating LGBTQ students in a non-discriminatory manner. We hope that that will force schools to immediately assess their policies, update them if they need to be updating them, and proactively addressing discrimination where they see it occurring,” said Sarah Warbelow, the legal director at the Human Rights Campaign. “It also lets students know what their rights are. So it’s helpful for students to be able to approach a teacher or an administrator if they’re experiencing discrimination and say, ‘I’m entitled to receive help from you.’”

Details Lacking

The looming culture war between states and the White House has been brewing for some time, but anti-LGBTO lawmakers are simply using it for a political wedge, said Warbelow.

“I don’t think that they care very much one way or the other about LGBTQ youth. They think they can score some political points,” she said. “This [proposal] shows them that the current administration takes very seriously its obligation to LGBTQ students. President Biden promised that he would stand by LGBTQ students, particularly transgender students because of all of the harmful laws that have been passed, and this is critical component of, in fact, standing by those students.”

However, the proposal is vague, leaving schools to sort out how to meet its requirements, Pasquerella said. It also will strain schools laboring under budget hits caused by the pandemic, which have hit Black and Hispanic students the hardest.

“Any administrative burden that’s added, in terms of compliance, is going to take a toll on the bottom line of institutions that are most vulnerable. It’s not going to have as much of an impact on independent institutions that have large endowments, but institutions that are serving those who are most at risk,” she said.

The American Association of Colleges and Universities already has plans to help schools as they prepare for another state-federal faceoff through an initiative, The Presidents’ Trust, which allows nearly 700 campus leaders to come together and discuss how they can and will address these issues and how they go through the decision-making process.

Pasquerella said she foresees the Trust being used heavily in the coming months. “This is a real challenge, and it will require new levels of moral courage on the part of higher education leaders to do what they believe is in the best interest of all students and to meet the public purpose of higher education,” she said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jessica Coomes at jcoomes@bloombergindustry.com