Dive Brief:
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More states — including South Carolina, Louisiana, Oklahoma and Indiana — are advancing legislation that would prohibit transgender students from participating on sports teams or using school facilities like bathrooms that align with their gender identities.
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In May, South Carolina Gov. Henry McMaster, a Republican, signed into law a bill prohibiting transgender students from participating on women's athletic teams. Last week, Louisiana legislators sent their version of such a bill to Gov. John Bel Edwards, a Democrat who vetoed a previous proposal.
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Last week, Indiana's legislature overrode Gov. Eric Holcomb's veto of a bill that will prohibit transgender girls or women from playing on female sports teams. A similar scenario unfolded in Utah in late March, when the state legislature overrode Gov. Spencer Cox's veto. Both Holcomb and Cox are Republicans.
Dive Insight:
The current success of anti-transgender legislation comes as the U.S. Department of Education continues to postpone the release of new draft Title IX regulations, which are expected to include protections for LGBTQ students. After originally moving up its proposed regulations by a month, to April instead of May, the department now expects to release them in June.
"State legislation related to transgender students has greatly increased over the last few years," said Lexi Anderson, policy director of the Education Commission of the States, in an email. ECS tracks state education policy.
While some states have sought to restrict transgender students’ participation on sports teams that align with their gender identity, other states have tried to increase protections for LGBTQ students.
As of May 26, some 17 states had enacted laws banning transgender students from playing on athletic teams consistent with their gender identities, according to the Movement Advancement Project, a research nonprofit that tracks anti-transgender legislation. In some cases, states' high school athletic associations also have their own requirements and restrictions outside of state law.
Yet despite the state moves, transgender students have gained the support of President Joe Biden's administration. U.S. Secretary of Education Miguel Cardona has repeatedly expressed support for transgender girls' participation on girls' teams.
Brett Sokolow, president of the Association of Title IX Administrators, expects the department to offer protections for transgender students' chosen name, facility access and athletics participation.
Sokolow doubts, however, that the department and its Office for Civil Rights would limit penalties for deadnaming — or referring to students by a name, such as their birth name, they do not want to use — and misgendering transgender students in the face of their First Amendment rights.
"I expect that OCR will use the regulations to expressly preempt state laws that contradict the regulations, of which there are more and more each day," Sokolow said.
In the meantime, lower courts are mostly upholding transgender students' rights as local laws continue to be challenged.
As a result, Title IX coordinators are keeping an eye on the rulings and may need to change policies or practices as new rulings come down.
"Already, almost every federal circuit has protected bathroom access under Title IX for trans and nonbinary students, and the trickle-down effect of Bostock on Title IX seems to be significant," Sokolow said, "so more and more protections may be mandated by the courts long before the upcoming Title IX regulations see the light of day." The 2020 Bostock v. Clayton County Supreme Court case was a landmark decision that protected LGBTQ employees from sex discrimination under civil rights law.
Schools will likely have to abide by state laws in places where courts have not sided with transgender students or where a decision has not yet been made, as Biden's earlier executive order protecting transgender students and the department's interpretation of Title IX do not have the force of federal law, multiple Title IX experts have said.
