Equity & Diversity

Proposed Federal Rules on Title IX Draw Flood of Public Comments

Protection for LGBTQ students a major focus in the rulemaking process
By Libby Stanford — September 13, 2022 5 min read
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The U.S. Department of Education received hundreds of thousands of comments related to its proposed overhaul of Title IX sex discrimination rules, exposing the divisive nature of the effort to explicitly protect LGTBQ students from bias among other contentious issues.

The Education Department released its proposed changes to Title IX regulations in June, making headlines for the decision to broaden the definition of sex-based harassment and discrimination to include gender identity and sexual orientation. The proposed rules had received 235,816 comments by its deadline on Sept. 12, according to regulations.gov, the website that allows members of the public to comment on policy.

The proposed rule also provided new protections to pregnant and parenting students, broadened strict definitions of sexual harassment implemented by former U.S. Secretary of Education Betsy DeVos, and overturned Trump-era policies for the process of responding to sexual harassment, assault, and sex discrimination.

As written, the department’s proposed rule would prohibit schools from excluding students from educational activities and programs based on their sexual orientation and gender identity. However, the proposed policy did not address whether Title IX ensures transgender students’ rights to participate in a sport consistent with their gender identity—a question that the Education Department will consider in a separate rulemaking process.

LGBTQ rights a flashpoint in the regulatory process

LGBTQ advocates said the proposal marked a defining moment for LGBTQ students as many of them, especially transgender and nonbinary students, find themselves in the crosshairs of political debates over their identity.

Over the past two years, state and local lawmakers have debated the rights of LGBTQ students, passing laws that ban transgender students’ ability to play on sport teams consistent with their gender identity, prohibiting teachers from using students’ pronouns or chosen names in class, banning books related to LGBTQ issues, and limiting discussions of gender and sexuality in the classroom.

Public comments reflect cultural divisions

The comments on the proposed rules reflect the divisive nature of LGBTQ students’ rights in schools.

Many of the comments were identical to each other and written by groups like the American Family Association and the Family Policy Alliance, both anti-LGBTQ nonprofit organizations, which urged commenters to “stop Biden’s LGBT agenda in schools” and “help stop Biden’s radical new rule that destroys girls privacy in dressing rooms.”

“For fifty years, Title IX has provided important protections and opportunities for women by prohibiting discrimination on the basis of sex,” one of the comments said. “While parents across the country are demanding the rejection of ‘woke’ policies, the Department of Education instead has chosen to hijack Title IX to force gender ideology on children without their parents’ knowledge or approval.”

Others expressed concerns that the proposed rule would affect women’s sports. However, the timeline for the proposed rulemaking on that issue is unclear, and the proposed rule explicitly states “the Department plans to address by separate notice of proposed rulemaking the question of what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.”

“This proposed rule affects me greatly as a woman,” a commenter said. “It puts biological females at risk for losing out on sports scholarships and opportunities to play, due to the physical advantage that a biological male identifying as a woman has over a biological woman.”

The proposed rule also received thousands of comments from those who are in support of protections for LGBTQ students. One person, who identified as transgender, wrote that the rule would “hopefully prevent emotionally damaging abuse for our children in the future.”

“As children, we wanted nothing from school but the opportunity to learn and to be respected as any other student would be,” the commenter said.

Other commenters asked for the Education Department to make it easier for people experiencing sex discrimination and harassment to report it to their school.

“As a former student who relied on Title IX protections for my own gender identity status as a transgender individual, I believe this is a significant step to protect students and the like,” one commenter wrote. The commenter went on to explain that the LGBTQ students in their school faced discrimination from teachers and faculty.

“When we reported the instances, nothing was taken seriously and we suffered lash back from those who were supposed to be there to teach us, not to oppress us from being who we were,” the commenter said. “If serious follow-up had taken place, we could have felt the support and in turn, our mental health wouldn’t have suffered. I fear for the students who are currently still feeling unprotected until societal views change.”

Other commenters wrote in favor of the proposed protections for pregnant and parenting students and employees. The rule would require schools to provide break times and sanitary spaces for lactating mothers and would clarify that schools cannot discriminate against anyone experiencing pregnancy-related conditions, including people who have sought, received, or are recovering from an abortion.

“No person should be treated differently because they are pregnant or parenting, and these students deserve to have reasonable accommodations that allow them to parent and succeed academically,” one commenter said.

Major organizations chime in

The public comments also provided a forum for national advocacy and policy groups to weigh in on the proposed rule.

The National Women’s Law Center, a policy center dedicated to women and gender issues, argued that the Education Department “must also swiftly publish a rule affirming that accessing a full education includes accessing school sports, without singling out transgender and intersex girls and young women.”

But the Alliance Defending Freedom, a conservative legal organization, wrote that the proposed rule “undermines parental rights and exposes children to the risk of long-term harms.”

Now that the public comment period has closed, the Education Department will begin reviewing comments and creating the final changes. The department has not indicated a timeline for the final rules to go into effect.

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