The Biden administration’s education department is slated to make a drastic about-face from that of the Trump administration when it comes to Title IX protections. According to the New York Times, the department plans to confirm on Wednesday that Title IX protections do in fact extend to transgender students who in recent years have become targets of the conservative right. Under this latest interpretation, schools that receive federal funding will not be allowed to discriminate against students based on their gender identity, lest they risk losing their funding. Or at least that’s what it will say on paper.
As Republicans continue to push forward legislation that seeks to ban trans athletes, particularly young trans girls, from competing in school-sanctioned sports, this interpretation of Title IX does not provide a shield of any sort for trans students at large. “The reality is each case has to be investigated individually,” Cardona told the Times. Although he added that schools should be proactive in ensuring the protection of trans students, the burden is still on the shoulders of an already vulnerable population to report discrimination and hope that their Title IX office conducts a proper investigation.
The move, welcome as it is, is less a solid mandate and more a faint line in the sand that schools might be willing to cross if they have the financial sway to silence students. However, it is in line with the Biden administration’s attempts to put into practice President Biden’s self-proclaimed allyship with the LGBTQ+ community, and it doesn’t go unnoticed that this particular announcement is occurring in the middle of Pride. Whether or not the federal government is willing to go to the necessary lengths to actually enforce this announcement and protect trans students in all states, not just in blue states, will be another thing entirely.
DISCUSSION
On one hand, it doesn’t seem extraordinary to me that potential violations would have to be investigated—that’s typically how enforcement actions work: someone or some entity breaks allegedly violates the prohibition, the aggrieved party reports it, the responsible agency or authority investigates and makes a finding, and action is either taken or not based on that finding.
Having said that, I don’t know what stops the students in question from suing to enjoin enforcement on their own. In the 1970s, the Supreme Court rules that there’s an implied private right of action for enforcing the provisions and protections of Title IX (and other other titles,) and maybe having their case certified as a class, or consolidated with other similar cases. Does this put the onus back on the trans student to vindicate their own rights? Yes, but that’s not different from any other discriminated against minority facing down the enmity of their State’s legislature.