New federal sexual harassment and discrimination regulations extending protection to gender identity went into effect in August, but a legal battle more than 1,500 miles away is preventing hundreds of California K-12 schools and universities from enacting policy changes.
Since the Biden administration announced the changes to the 1972 Title IX law, federal judges have issued injunctions blocking the regulations in 26 states. While California is not among the states challenging the new rules, at least 98 K-12 schools and 687 colleges and universities in the state have been impacted by an injunction issued by a federal court judge in Kansas.
That’s because the injunction blocks schools from applying the new regulations if they have a student who is a member of any of the three conservative organizations listed as plaintiffs in the lawsuit — Moms for Liberty, the Young America’s Foundation and Female Athletes United. The organizations have sought to stop further LGBTQ+ and gender legislation in schools and classrooms.
The order has led to division and confusion among Bay Area schools as they scramble to decide whether to move forward with any changes.
Amy Brandt, a San Francisco-based education attorney, said schools were “blindsided” by the short notice regarding enactment of the new protections.
“It’s created this significant concern and confusion more than anything for the schools or districts who have one or multiple schools or colleges listed on the preliminary injunction,” Brandt said. “So at one school, the Department of Education cannot enforce the 2024 regulations, but at the (others) they can and will.”
Most of the objections to the new rulings announced in the spring focus on a change to the definition of sex discrimination to include discrimination based on sexual orientation and gender identity. Some conservative groups are calling it a “radical rewrite” of Title IX that oversteps the Biden administration’s authority.
“Changing the definition of sex to include gender identity and sexual orientation — the Department of Education doesn’t have the right to do that,” said Tiffany Justice, co-founder of the parental rights advocacy group Moms for Liberty and one of the plaintiffs in the lawsuit. “We also believe that … these new regulations would force children and teachers to use the pronouns that a child wants to be used rather than biological fact. And we refuse our children to be compelled to lie in schools.”
The new regulations also expand protections for pregnant students, eliminate a requirement for colleges to hold live hearings with direct cross-examination and extend the scope of protections to include off-campus and international incidents.
They further direct schools to use a lower “preponderance of evidence” standard to determine whether sexual harassment, assault or discrimination occurred — meaning the evidence is enough to conclude that discrimination more likely than not took place.
Groups opposed to the new rules have said the changes remove the protections and equal opportunity for which women have fought for decades. They say the redefinition of sex to include gender identity will bar schools from preventing transgender students from participating in sports, especially in female sports.
“The rule flips Title IX on its head,” said the conservative women’s advocacy group, Independent Women’s Voice. “It strips protections for women and girls — robbing women of equal opportunity, privacy and fairness. It cheats female athletes out of their trophies, roster spots, playing time and resources and gives them to men.”
Last month, the Supreme Court rejected the Biden administration’s emergency request to allow the unchallenged parts of the 2024 regulations to go into effect while litigation continues, leaving Bay Area schools in limbo as they decide how to move forward.
Dublin Unified, Fremont Unified, Oakland Unified, Palo Alto Unified, San Francisco Unified and East Side Union High school districts all have high schools listed as being impacted by the injunction.
Fremont Unified said schools listed under the injunction — including American High — are following the 2020 regulations while all others are following the new 2024 regulations.
But Dublin Unified said the district is moving forward with updating its Title IX policies, despite the injunction on Dublin High. The district introduced its revised sexual harassment and discrimination policies under the new regulations at its board meeting this week.
Regardless of whether schools choose to implement the 2024 regulations, they could be vulnerable to lawsuits on both sides, said Brandt, the education attorney.
At the college and university level, at least nine California State University campuses, including San Jose State University, and six University of California campuses — including Santa Cruz and Berkeley — are impacted by the injunction. Santa Clara University and Stanford University also are included in the injunction.
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San Jose State University said it is legally required to comply with the 2020 regulations until the “legality of the new regulations is resolved by the court.” In the meantime, the university said it has issued an interim nondiscrimination policy as a bridge until the injunction is lifted. The interim policy prohibits harassment on the basis of sex or gender, including gender expression, identity and pregnancy.
In a statement to the Stanford community, Patrick Dunkley — the university’s vice provost for institutional equity, access and community — said the university has decided to hold off on making any changes to its policies and procedures.
UC Berkeley said its existing systemwide sexual violence and harassment policy goes “above and beyond” the 2020 regulations by including protections against all forms of sex-based harassment, including on the basis of gender identity, expression and pregnancy.
“We are already well-positioned to respond to and address any concerns from our community, regardless of the status of the injunction or 2024 regulations,” the university said.
Brandt said it’s unclear if or when the 2024 regulations will go into effect nationwide, especially if Trump wins the election.
“I think there are a lot of questions about whether the Kansas Court has jurisdiction over California schools,” Brandt said. “But I imagine if there’s a change in political party in the presidential election, I predict we would see another change to Title IX regulations.”
