This opinion originally appeared in the Detroit Free Press 09/20/24
Earlier this year, the Biden Administration’s Department of Education issued new federal regulations under Title IX, the civil rights law prohibiting sex discrimination by schools that receive government funding.
Conservative groups in 26 states filed suit, seeking to bar the rules from being enforced by the Education Department, and have won preliminary injunctions against that enforcement.
But discriminating against transgender students remains illegal in Michigan — in part because Michigan explicitly bars such discrimination in state civil rights law, whereas Title IX prohibits sex discrimination, and because those court orders don't prohibit schools from adopting trans-student-friendly policies at the local level.
For transgender students who do not live in one of the 22 states (plus Washington D.C.) that, like Michigan, have civil rights laws explicitly prohibiting gender identity discrimination, Title IX provides important protections against discrimination on the basis of sex, which many federal courts have held cover transgender people.
The Biden Administration's new regulations define sex discrimination to include discrimination based on sexual orientation and gender identity, applying the reasoning in the 2020 United States Supreme Court decision in Bostock v. Clayton County, Georgia, that discrimination against LGBTQ employees is “discrimination because of sex” in violation of Title VII, the federal civil rights law that prohibits sex discrimination in employment.
To quote Education Secretary Miguel Cordona, “These final regulations build on the legacy of Title IX that all of our nation’s students can access schools that are safe, welcoming, and respect their rights.”
The regulations make it clear that schools may not have a policy or practice that prevents a student from participating in educational programs or activities consistent with the student’s gender identity, when it causes more than minimal harm.
The Department of Education has determined that denying transgender students the ability to access restrooms that align with their gender identity causes more than minimal harm to students and is in violation of Title IX.
One legal challenge in Kansas included not only states as plaintiffs, but also organizations, such as Moms for Liberty. In that case, the federal judge who issued the preliminary injunction ruled that the Department of Education would be prohibited from enforcing the regulations not only in the plaintiff states, but also against schools where any current or prospective member of Moms for Liberty have children in attendance. In response to the court’s order, Moms for Liberty submitted a 63-page list of schools throughout the United States where its members have children attending schools, including 140 schools in Michigan.
The ACLU of Michigan strongly disagrees with the legal analysis of the federal district courts that resulted in preliminary injunctions being entered against federal enforcement of the Title IX regulations. The rationale in the Supreme Court’s Bostock decision — that discrimination against transgender people is a form of sex discrimination — is no less true for transgender students under Title IX than it is for transgender employees under Title VII.
Allowing cisgender students access to restrooms that align with their gender identity, but not allowing transgender students access to restrooms that align with their gender identity, is discrimination that violates Title IX. These decisions are being appealed, and we hope they will be reversed by the federal appellate courts.
In the meantime, regarding schools in Michigan, it is important to understand what the court’s order on behalf of Moms for Liberty does and what it doesn’t do. That can be broken down into three simple points:
First, the order issued by the federal court in Kansas means that the U.S. Department of Education cannot enforce the Title IX regulations against Michigan schools where Moms for Liberty members have children in attendance.
The order does not, however, prohibit schools from having their own policies that allow transgender students to access restrooms that align with their gender identity. Schools can also provide alternative single-user restrooms for any student, regardless of gender identity, who is not comfortable sharing a restroom with other students
Furthermore, the order does not prevent enforcement of Michigan’s civil rights law, which goes beyond Title IX by explicitly including gender identity and expression as being protected from discrimination. Under Michigan law, schools must allow transgender students to access restrooms that align with their gender identity, just as they allow cisgender students to access restrooms that align with their gender identity. To deny transgender students this same opportunity is discrimination based on gender identity in violation of Michigan’s civil rights law, regardless of whether it is discrimination because of sex in violation of Title IX.
In other words, the recent federal court orders do not impact both the ability and the responsibility of schools throughout Michigan to treat transgender students fairly under our state’s civil rights law.
Contrary to any assertions by those who may misunderstand or wish to misrepresent the recent court decisions, they provide no legal justification for discrimination against transgender students.
Families with transgender children who are experiencing discrimination by their schools can contact the ACLU of Michigan for assistance and have the option of filing a complaint with the Michigan Department of Civil Rights.
Jay Kaplan is ACLU of Michigan's Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project staff attorney.