Here’s what to know about the new Title IX regulations in Pennsylvania

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The Biden administration’s new Title IX regulations went into effect Aug. 1. But 26 states have blocked it and some individual schools are exempt from implementation, thanks to a federal injunction.

A spokesperson for the Pennsylvania Department of Education said in an email that the department plans to update its own policy to reflect the new Title IX regulations that protect students from gender identity discrimination.

“The Shapiro Administration believes that all learners deserve a school environment free from harassment and discrimination, and Pennsylvania was one of the first states to develop a model policy under the It’s On Us program,” the statement said. “The Department will continue to communicate with the field regarding updated federal requirements and stands ready to provide any necessary technical assistance.”

The department also noted existing protections under the Pennsylvania Human Relations Act, and said “the Pennsylvania Human Resources Commission has specific information for school districts, students, and employees regarding prohibitions against illegal discrimination under state law.”

On Aug. 16, the Supreme Court ruled in response to an emergency request from the Biden administration that those injunctions still stand.

Here is everything you need to know about the new regulations and what the ongoing legal battle means for Pennsylvania students and their parents.

What are the new Title IX regulations?

The Biden administration’s new Title IX regulations build out the 1972 protections from sex-based discrimination in federally funded education programs. The new regulations explicitly prohibit discrimination based on gender identity and sexual orientation.

Brian Dittmeier, director of public policy at GLSEN, a national advocacy organization that creates safe and affirmative learning environments for LGBTQ+ students, said the new regulations are “an important step forward in protecting LGBTQ students from harassment, bullying and discrimination at schools.”

Federal laws against sex discrimination have long been interpreted to apply to LGBTQ+ individuals, but the new regulations make that explicit, Dittmeier said.

“Title IX really plays a critical role in diagnosing when there is a hostile learning environment and taking steps to address that or to proactively prevent a hostile learning environment,” he said.

Dittmeier said 83% of LGBTQ+ youth have been victimized in school, but of that group, 62% have never reported an incident to school staff.

“And that says to us that there is not just a significant trend of underreporting, but a trust gap between students and their school administration,” Dittmeier said. “And so when Title IX expressly says sexual orientation and gender identity is considered within the scope of our non-discrimination mandate, that sends a clear message that students are protected and they can bring the problems that they’re facing to school administration, and that there should be steps taken to address that.”

Apart from naming gender identity and sexual orientation as protected categories, the new regulations expand protections for pregnant and postpartum students and outline new reporting procedures that mandate investigation of verbal or informal complaints, as well as written complaints.

Who is challenging the new regulations and why?

Pennsylvania is not one of the 26 states blocking the new regulations.

However, more than 100 schools in the state are exempt from the new regulations because of a July injunction issued by a Kansas federal judge. The judge ruled that schools in which students or parents are members of three conservative groups — Moms for Liberty, Young America’s Foundation and Female Athletes United — cannot implement the new regulations.

“What the DOE did in trying to redefine sex to include gender identity, sexual orientation, pregnancy-related conditions, what they did is unconstitutional,” said Tiffany Justice, co-founder of Moms for Liberty, which describes itself as a parental rights group.

Justice said that Moms for Liberty members oppose the new regulations that ensure students can use bathrooms that align with their gender identity, among other protections for transgender students.

Justice said an example would be a girl who reports she’s uncomfortable in the bathroom if there is a transgender woman or student in the bathroom.

“Under the DeVos rules with President Trump, it would be the other person that would be making her uncomfortable, and that would be what the Title IX complaint would be, that … she was being discriminated against and sexually harassed in her bathroom,” she said. “Under the new rules, it would be that if she spoke up, she could have a Title IX complaint lodged against her. She would be the problem.”

Which schools in the Greater Philadelphia region are included in the injunction?

Here’s a list of the Pennsylvania schools that are exempt from the new regulations. However, the list can be updated. The injunction covers schools where Moms for Liberty members and the other groups have children attending, as well as schools of prospective members. That means the list can be continuously updated when new members join any of the three organizations at schools not previously included under the injunction.

Justice, of Moms for Liberty, estimates that “thousands” of parents have signed up since the injunction.

“We’ve gone out and used this to help to grow our membership and help our awareness,” she said.

Dittmeier, of GLSEN, said less than 5% of Pennsylvania public schools are included in the injunction.

“The vast majority of students in Pennsylvania are going to be in schools that are governed by the updated Title IX rule and have remedies available to them, should they be facing bullying, harassment or discrimination,” he said. “But even the students in schools where there is an injunction can still assert their rights.”

Are LGBTQ+ students at schools with the injunction still protected from discrimination based on gender identity and sexual orientation?

The short answer: yes.

“The injunction is really about the administrative implementation of the rule, and it does not impact students from being able to assert their rights either by filing complaints with their school administration, their school board, with the state, with the U.S. Department of Education, or asserting their rights in court,” Dittmeier said.

The Pennsylvania Human Relations Act already protects gender identity and sexual orientation, and the Pennsylvania Human Relations Commission responded to the Title IX injunctions by outlining the ways in which this law protects all students in the commonwealth against gender identity and sexual orientation discrimination.

Dittmeier said if Pennsylvania’s Department of Education updates their policies to comply with the new regulations, that would benefit LGBTQ+ students throughout the commonwealth.

“That is a huge step forward for the 10,000 trans students that live in Pennsylvania,” he said.

How are school districts with some schools covered in the injunction, and some not, implementing the new regulations?

Several Pennsylvania school districts have some schools covered under the injunction and others that are not. They’re having to navigate a complicated legal process which is likely to change with ongoing lawsuits.

Pennridge School District is one such example.

“The Pennridge School District is reviewing the developments regarding the implementation of the recently amended Title IX regulations and consulting with its solicitor and the Pennsylvania School Boards Association,” a spokesperson for the district said in a statement. “The District will follow applicable law.”

What comes next?

The U.S. Department of Education in July filed an appeal of the preliminary injunction in the U.S. Court of Appeals for the Tenth Circuit. Two other federal appeals courts have ruled in favor of injunctions against the new regulations.