A Standoff Over Transgender Rights

Lawmakers across the country returned to state capitols in January with legislative agendas in hand and change on their minds. For many Republicans, a common issue sits near the top of their lists: regulating the rights of young transgender people.

In Tennessee, Republicans said their first priority for this year was a ban on transgender health-care treatment for minors. Politicians are scrutinizing higher ed specifically: In Florida, Gov. Ron DeSantis’s budget office asked public colleges to report their spending on gender-affirming services, including the number of “encounters” where people sought sex reassignments.

But as some states are moving to further restrict transgender protections, the federal government is poised to expand them.

The Biden administration has proposed including gender identity and sexual orientation in regulations interpreting Title IX, the 50-year-old gender-equity law. While past federal guidance has stated that Title IX covers gender identity, this change under Biden — not yet final, but expected to go through — will codify antidiscrimination protections for transgender students as federal law. Some campus administrators and experts say that they’ve already seen more LGBTQ cases coming to Title IX offices over the past few years — and that such protections have become more imperative.

In practice, the shift would require colleges to confront harassment that transgender students face based on their identity, something that’s already required by law in 23 states and the District of Columbia. It would also further open the door for students to file complaints with the U.S. Education Department if they feel institutions have fallen short.

These competing visions for transgender rights have set up a showdown between conflicting federal and state policies — one that could escalate quickly once the Biden administration’s regulations are finalized in May.

On college campuses, Title IX offices have to prepare for yet another wave of new mandates and messy politics. And the people with the most at stake — transgender students — must continue to navigate life while watching their identities come under political debate.

“It’s a lot to wake up every day and see these constant attacks,” said Zofia Zagalsky, 24, a transgender student at Middle Tennessee State University.

During the last three presidential terms, a tug of war has ensued over protections for transgender students, with conservatives straining against progressive-led expansions of Title IX.

In 2016 the Obama administration asserted in a “Dear Colleague” letter that Title IX required public schools to allow students to use the restrooms and other sex-segregated facilities that aligned with their gender identity. A year later, the Trump administration rescinded that guidance.

Then, in 2020, the Supreme Court ruled in Bostock v. Clayton County that gay and transgender people were protected under Title VII, a federal law that bars sex discrimination in employment.

When Joseph R. Biden Jr. became president seven months later, his Education Department quickly issued new guidance on transgender students and got to work adding protections for them to the government’s Title IX regulations, citing the Bostock ruling. Unlike guidance, regulations can’t be scrapped with the stroke of a pen by a new administration, and revisions must go through a public-comment period.

There was plenty of public input on Biden’s proposed changes, announced last June. During the 60-day window, over 240,000 comments were submitted, many opposing transgender rights. Critics wrote that protections and opportunities for women and girls, such as gender-specific scholarships and within sports, would be lost.

The pushback against the Title IX regulations is part of a larger anti-LGBTQ movement that’s gained steam among conservative policy makers, said Scott Skinner-Thompson, an associate professor at the University of Colorado Law School who studies LGBTQ issues.

“Conservative lawmakers have increasingly decided to use transgender lives as political fodder,” Skinner-Thompson said. “But I think that would be happening irrespective of these regulations, and indeed was happening irrespective of these regulations. They’ve been ratcheting up over the years.”

Last spring, Florida’s Legislature passed the contentious legislation critics call the “Don’t Say Gay” bill, which restricted discussion and instruction about sexual orientation in elementary and secondary schools; a dozen states have proposed or passed similar laws since then. In 2022, state lawmakers filed 315 anti-LGBTQ bills, 29 of which have passed, according to the Human Rights Campaign.

So far, the majority of courts that have considered whether Title IX protects transgender rights have sided with transgender students, Skinner-Thompson said.

He pointed to federal appeals-court rulings in two recent cases — Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board — in which transgender students sued their school districts, in Wisconsin and Virginia, in part for refusing to allow them to use the restroom that aligned with their gender identity. In contrast, though, a federal district judge in West Virginia ruled in January that a ban on sports participation by female transgender students was constitutional.

While much of the public attention has focused on transgender students’ rights in K-12 schools, colleges are also dealing with these issues. Higher ed is likely to encounter more gender-identity cases once the Education Department proposes regulations broadening transgender students’ participation in athletics — a facet of Title IX that federal officials are working on separately.

In a 2018 case, a transgender student at Shawnee State University, in Ohio, complained to administrators that a professor had refused to use her preferred pronouns. The Title IX office investigated, and the professor was disciplined. He sued the university and last year settled his lawsuit for $400,000.

As the Biden administration has vowed to protect transgender students, Tennessee is helping lead the opposition.

Attorneys general in Tennessee and 19 other conservative states sued last June to halt enforcement of Biden’s guidance on gender-identity protections. They argued that the president’s Title IX changes take away authority that belongs to the states, including the right to restrict people from playing on sports teams and using bathrooms that don’t correspond with their sex assigned at birth.

In July a federal district judge in Tennessee issued a ruling temporarily blocking Biden’s guidance in those 20 states.

Then a Tennessee lawmaker took an unusual step: He advised leaders of Tennessee’s public universities “to immediately revoke and/or remove any publications, policies, and website entries for which your institution is responsible that state or imply that LGBTQI+ students, etc., are a protected class under Title IX.”

State Rep. John D. Ragan Jr., the Republican who sent the email, told The Chronicle in September that he was doing “nothing more than reminding state institutions to follow existing law. That some people are apparently upset over prompting a public institution to adhere to the law is perplexing.”

At East Tennessee State University, the Title IX office followed through on the lawmaker’s request. (A spokesperson for East Tennessee State didn’t respond to a request for additional comment about the decision.) Middle Tennessee State University, however, where Zofia Zagalsky is a student, kept its nondiscrimination statement intact.

Jimmy Hart, a Middle Tennessee State spokesperson, confirmed to The Chronicle that the university continues to promote equal opportunity without regard to sexual orientation or gender identity and expression.

Tennessee’s political climate has made some college students turn away from LGBTQ advocacy work, said Chris Sanders, executive director of the Tennessee Equality Project.

“Every time we have discriminatory bills in Tennessee, and we do every legislative session, LGBTQ people have to endure seeing their lives debated in the media,” Sanders said.

A revamped Title IX “may be the only level of protection people in red states” like Tennessee have, Sanders said. It would ensure that colleges, often the first place where students experience inclusive policies, continue to make transgender rights a priority, he said.

Classifying transgender rights as federal law would also set a tone for leadership in colleges across the country. Sanders said it matters that Title IX applies to all states, because higher education is heavily interconnected — students will compete in sports in different states; professors often move around to different campuses; and many students attend colleges outside their home states.

“The policy is not the whole answer,” Sanders said. “But it’s an important part of the answer because it gives people something to appeal to when they’ve been abused or discriminated against.”

When Biden’s Title IX proposals go into effect, they will “have the force of law behind them, more so than just the ‘Dear Colleague’ letter the Obama administration issued,” said Suzanne Eckes, a former lawyer and schoolteacher, and now a professor of education law, policy, and practice at the University of Wisconsin at Madison.

Ultimately, federal law will trump state law. If colleges don’t comply with Biden’s mandates, they could be sued for an individual cause of action. In a worst-case scenario, institutions could have federal funding revoked.

“But at the same time,” Eckes said, “you’re going to have lawsuits from red states that are going to challenge it.”

Balancing federal and state obligations is going to fall, in large part, to Title IX offices.

When the Trump administration rescinded Obama-era guidance on Title IX and transgender students, Lisa Evaneski, Title IX coordinator at the State University of New York at Oswego, said her office continued to manage gender-identity and sexual-orientation cases.

“Even when there may have been communication that we shouldn’t handle those cases under Title IX, we still did,” Evaneski said. “We let our community know that we had New York laws that protected our students and employees.”

After Biden’s changes go through, Evaneski said, she expects more such cases to come to her office — in part because student-led LGBTQ advocacy has created greater awareness.

Transgender students are a relatively small group on most campuses, so they often aren’t enough of a focus for administrators, said Genny Beemyn, director of the Stonewall Center, which provides support for LBGTQ people at the University of Massachusetts at Amherst.

“Title IX offices have to be working hand-in-hand with LGBTQ+ centers,” Beemyn said. “Because we have to try to change the narrative on campuses to mean that yes, transgender students should file a complaint if you’ve experienced sexual assault, sexual harassment, or been misgendered, because we will do a good job by you.”

Title IX offices, Beemyn said, should treat cases of repeated misgendering and deadnaming — calling a transgender person by their former name before transitioning — with the same gravity as other forms of verbal and sexual harassment.

Administrators, Beemyn said, need to recognize “the impact of being misgendered repeatedly and the psychological toll that can have on students.”

Zagalsky, the Middle Tennessee State student, has watched lawmakers target transgender students in K-12 schools and public colleges. But she has found a safe haven at the university outside Nashville, where she is a senior and president of the Lambda Association, the oldest campus LGBTQ club in the state.

She has seen the importance of campus support in places like Tennessee. “They need this community,” Zagalsky said of fellow students. “They need the people around them to keep them afloat, to keep their mental state stable, and not be forced to live in a world by very specific guidelines.”

But as the federal-state fight over transgender students escalates in the coming months, Zagalsky and others will continue to exist in a space where politicians’ views and legal parameters collide with the students’ desires to live as themselves.

Last year Zagalsky participated in a ballroom culture event — a fixture within the LGBTQ community that celebrates identity — that was co-hosted by the Lambda club and the Black Student Union. Dressed in a faux-snakeskin dress and leather heels, Zagalsky entered the room to Diana Ross’s “I’m Coming Out,” with a hundred people cheering her on. She was awarded a crown for her performance.

It was the first event of its kind held at Middle Tennessee State. It was also a moment when Zagalsky not only felt celebrated, but secure in her identity.

“I felt on top of the world for getting just this $9 crown,” Zagalsky said. “It’s just about giving people those moments, giving people that joy.” She later added: “Life becomes very dull when you’re not living as yourself.”