This article was reprinted with permission from Virginia Mercury.
Virginia Attorney General Jason Miyares has joined a multi-state effort to stop new Title IX rules from going into effect.
The list of new rules designed to protect victims of campus sexual assaults and the rights of LGBTQ+ students has come under attack by Republican attorneys general in several states.
Miyares called the changes a “dangerous overhaul” of Title IX, and said the new rules would negatively impact students, families and schools in the commonwealth. The ruling also comes after Gov. Glenn Youngkin’s administration overhauled the commonwealth’s transgender student policies.
“The Biden Administration’s unlawful rule would jeopardize half a century of landmark protections for women, forcing the administration’s social agenda onto the states by holding federal funding hostage,” Miyares said in a statement. “They are avoiding Congress and the constitutional process because they know it will not pass. We cannot roll back Title IX in the name of false equity.”
Attorney generals from Tennessee, Indiana, Kentucky, Ohio and West Virginia have also signed onto the suit, which was filed in Tennessee. Separate lawsuits have been filed in other states, including Louisiana and Texas.
Title IX, which has undergone several transformations based on the political party in office, was created to address women’s rights and prohibits any federally funded school or education program from discriminating against any student based on sex since it was established in 1972.
The Department of Education said some differences compared to the previous version developed under the Trump administration, include protections against all sex-based harassment and discrimination, prohibits schools from sharing personal information and supports students and families.
Narissa Rahaman, executive director for Equality Virginia, said in a statement that the rule prevents opponents from weakening “crucial” civil rights protections including for LGBTQ+ students by ensuring that pregnant and parenting students have a right to equal education opportunities, protecting student survivors and guaranteeing the rights of LGBTQ+ students to come to school as themselves without fear of harassment or discrimination.
“Students across races, places, and genders prove every day that they can do great things, especially when there are strong Title IX protections in place, which is why the Biden Administration’s updates to the Title IX rules are essential to ensure every student can thrive at school,” said Rahaman.
The new rule is slated to take effect on Aug. 1 and will apply to complaints of alleged conduct that occurs on or after that date, according to the Department of Education.
Protections
While the ruling protects students and employees from all sex-based harassment and discrimination, it will also impact LGBTQ+ students and employees, including providing complete protection from sex-based harassment and prohibiting schools from sharing personal information.
Schools must act “promptly and effectively” to protect and treat all students and staff who make complaints “equitably.” Schools must also provide support measures to complainants and respondents, and act to end any sex discrimination in their programs and prevent any recurrence.
The rule further clarifies the definition of “sex-based harassment,” which means to treat someone unfairly because of their gender; and the scope of sex discrimination, including schools’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
The federal agency said the changes will empower and support students and families by requiring schools to disclose their nondiscrimination policies and procedures to all students, employees, and other participants in their education programs so that students and families understand their rights.
The final rule also protects against retaliation for students, employees, and others who exercise their Title IX rights, and supports the rights of parents and guardians to act on behalf of their elementary school and secondary school children.
The rule also protects student privacy by prohibiting schools from disclosing personally identifiable information with limited exceptions, which is something the Youngkin administration has opposed.
Advocates say one of the rights students should have is the power to decide who finds out about their transgender status, to protect them from being bullied or harassed.
Virginia policies
In 2021, the first model policies for transgender students were designed under former Gov. Ralph Northam to provide school officials guidance on the treatment of transgender and nonbinary students and to protect the privacy and rights of these students.
However, some schools declined to adopt the model policies, and the state law that led to them lacked enforcement incentives or penalties.
The current policies adopted by the Youngkin administration were revised to require parental approval for any changes to students’ “names, nicknames, and/or pronouns,” direct schools to keep parents “informed about their children’s well-being” and require that student participation in activities and athletics and use of bathrooms be based on sex, “except to the extent that federal law otherwise requires.”
Virginia schools have also not fully adopted the newly revised policies, and state law has not changed since the policies were overhauled in 2023.
The Virginia Department of Education faces two lawsuits over the policies adopted by the Youngkin administration.
“All Virginia students, including our transgender and non-binary students deserve to feel safe and welcomed at schools,” said Wyatt Rolla, a senior transgender rights attorney with the ACLU of Virginia. “Accessing restrooms, locker rooms and other facilities that are necessary when you are at school learning is a key part of our schools being inclusive of those transgender [and] non binary students that are part of our community.”
Athletics not included
The provisions under the new Title IX rule did not mention anything about requiring schools to allow transgender students to play on teams that align with their gender identity. Virginia has taken its own shot at banning transgender athletes from competing in sports through legislation.
In February, the Youngkin administration attempted to challenge the Virginia High School League’s policy on transgender athletes, the Daily Progress reported.
The proposed policy would have matched with the administration’s current policies that students should be placed on teams based on their biological sex rather than their gender identity.
The Virginia High School League, which oversees interscholastic athletic competition for Virginia’s public high schools, allows for transgender athletes to participate on teams that match their gender identity, but under certain conditions.
Simultaneously, lawmakers in the Virginia General Assembly controlled by Democrats killed bills, including Senate Bill 68, during the previous session that would have essentially banned transgender students from competing in sports.
Sen. Tammy Brankley Mulchi, R-Mecklenburg, who carried Senate Bill 723, said students like her 6-year-old granddaughter should have a choice to play with their own gender during a Feb. 1 Senate Education subcommittee hearing.
Mulchi’s bill would have required schools and colleges to have separate sports for boys and girls based on their biological sex. Any dispute would require a note from a doctor.
“If she [my granddaughter] wants to play an all-girl sport, I want her to play against girls that were born girls and not play against someone that is much stronger than her or can hurt her and take away her chances of a scholarship,” Mulchi said.
However, Sen. Stella Pekarsky, D-Fairfax, argued during the February hearing that whether students are competing with their respective biological sex or not “children of all ages, sexes have different builds and strengths and no children are alike on the same team.”
