Updates to Title IX protections would stretch deeper into controversial areas

A renewed national conversation about Title IX could further complicate sex and gender issues in Oregon school districts.

For the 50th anniversary of the signing of the Education Amendments Act, the Biden administration proposed in June significant updates to Title IX, stretching the law further into areas of sexual orientation and gender identity. The U.S. Department of Education will be taking public comment until Sept. 15, before beginning its rules-making process.

Title IX is most associated with requiring equal opportunity for women in school sports, but the original law’s language did not explicitly address sports. It prohibited discrimination “on the basis of sex” in any education program or activity that receives federal assistance. Later Supreme Court rulings included sexual harassment, intimidation and assault under “discrimination.”

Women’s rights group and legal scholars credit Title IX with expanding women’s career options by increasing access to colleges, degree paths and financial aid, among other things.

Although a majority of Americans have a positive view of Title IX, according to the Pew Research Center, some, mostly on the political right, argue it has gone too far while others, mostly on the left, say it hasn’t gone far enough.

The updates would expand the law’s reach, moving it more in line with Oregon where recent laws have advanced protections for LGBTQ students and staff. But laws such as Every Student Belongs, which expanded discrimination protections, have met resistance in Oregon, especially in more conservative school districts. Oregon school boards have also discovered that social media has inserted national culture clashes into local decisions.

The Grants Pass School Board made the news last year when it fired and then reinstated two teachers over their campaign to challenge school policies on gender identities.

Grants Pass School Board Chair Gary Richardson said schools have seen a series of upheavals over expanded protections for women, minority groups and sexual orientation. Gender identity is just the latest. He said the key for school boards is to keep focused on individual student needs.

“When you look at things with that filter, a lot of that other stuff tends to go away,” he said.

New Grants Pass Superintendent Tim Sweeney said expanding Title IX would require some adjustments in thinking by administrators, just as the law did when it was first enacted in 1972.

“We want every student in the state to feel like they have someplace to belong,” he said.

The Obama administration issued guidance extending Title IX to cover transgender students in 2016. The Trump administration withdrew the guidance and, in 2020, narrowed Title IX’s reach, reducing schools’ reporting responsibilities and giving more protections to the accused in harassment and discrimination cases.

The Biden administration’s proposals would reverse those changes. They would offer more protections to sexual discrimination victims and strengthen the rights of LGBTQ students. The new rules would also clarify prohibitions of discrimination based on sex characteristics and pregnancy. Schools would be required to offer reasonable accommodations for pregnant students and staff. The new rules would give parents and guardians more rights to support students in Title IX cases.

Hillsboro School Board member Nancy Thomas supports the proposed changes but she has concerns. As a high school and college athlete and law school graduate, Thomas says she has seen in her own life the fruits of Title IX.

“If I have the right to benefit from Title IX as a female, then legally someone who believes they are a female should also have a right to benefit from it,” she said. “In my heart, I want everybody to get what they need – that is what equity is.”

But she also worries about Title IX’s protections being “stretched too far,” especially in sports, and thus pulling it away from women.

The proposed rules would require schools to allow students to participate in programs or activities consistent with their gender identities, but the U.S. Department of Education is planning a separate rule-making process for sports participation. Transgender students’ participation in women’s sports has raised concerns about privacy and competitive advantages.

Oregon already allows students to participate in sports based on their gender identities. According to the Oregon School Activities Association, Oregon had about 120 nonbinary students competing in high school sports in 2020-21. OSAA offers guidelines to determine appropriate  sports participation, but schools make the final call on which team a student plays on. OSAA Executive Director Peter Weber said the association will not challenge those local decisions.

Kate Hildebrandt, civil rights specialist and Title IX coordinator for the Oregon Department of Education, encourages school board members to get to know their Title IX coordinators. Federal law requires every school district to have a Title IX coordinator.

Hildebrandt said it’s not always obvious how policies will intersect with the complex law.

It’s also not always apparent how Title IX affects students’ lives, according to Sam Block, who graduated from Portland’s Lincoln High School in the spring. She said students are given a short presentation at the beginning of the year, but there are no ongoing resources about where to go or what to do if students have a complaint.

“It seemed, at least to me, mainly a bureaucratic thing that didn’t have any follow-through for students,” she said.

Block would like to see more Title IX access for students. Only four Oregon school districts currently have a Title IX case open, according to the U.S. Department of Education.

Block is enthusiastically in favor of expanding Title IX, though. She said a narrow application leaves out a lot of people.

“I rarely have a problem with resources being accessible to more students,” she said.

- Jake Arnold, OSBA
jarnold@osba.org