New federal protections for LGBTQ+ students went into effect Thursday, though whether they are enforceable in some 118 Pennsylvania schools remains unclear.
That’s because a federal judge in Kansas issued an injunction last month temporarily blocking the U.S. Department of Education from enforcing the recent Title IX changes in select public schools. The injunction applies to certain schools where students’ parents are members of the conservative grassroots group Moms for Liberty, one of the plaintiffs in the Kansas lawsuit.
As part of the ruling, the judge asked Moms for Liberty to submit a list of impacted schools. The group’s count includes elementary, middle and high schools in Fox Chapel; four Baldwin-Whitehall schools; three Seneca Valley schools; and Marzolf Primary in Shaler.
And that list has the potential to grow over the coming weeks, according to Kristina Moon, a senior attorney at the Pennsylvania-based Education Law Center. The ruling allows future members of Moms for Liberty to claim the benefit of the injunction.
“[That] creates a real mess and a lot of confusion for administrators in our state who have this ever-moving target,” Moon said.
School districts anticipate two sets of rules
Title IX prohibits discrimination on the basis of sex at all schools, colleges and educational programs receiving federal financial assistance.
The Biden administration’s new regulations, announced in April, advance that promise for LGBTQ students, explicitly stating institutions cannot discriminate against students based on sexual orientation or gender identity.
In addition, the revised rules strengthen protections for pregnant students, and clarify the steps schools must take to protect all students from and respond to discrimination.
“These rules are going to put more of an emphasis on the school district to ensure that students do not suffer discrimination or adverse treatment because of sex,” said John Vogel, solicitor for Shaler Area School District.
While Vogel said the district will ensure it’s providing students the “broadest protection possible,” he noted administrators at Marzolf Primary School may defer to the older, more narrow rules while the Kansas injunction is appealed. Vogel said the district’s remaining schools will implement the new regulations as expected.
“But if there's a complaint, you really have to analyze them under the rubric of the new rules,” Vogel explained.
Meanwhile, at Seneca Valley School District, a suburban district north of Pittsburgh, school administrators are anticipating two sets of rules. Haine Elementary School, Haine Middle School and Seneca Valley High School were among the Pennsylvania schools included on the list.
“Having two sets of rules certainly creates that administrative burden,” said Matt Hoffman, Seneca Valley’s solicitor. “But the district is certainly capable and will implement both sets of regulations as required.”
Hoffman said the district will continue to provide a safe and welcoming environment for all students under either set of regulations. There may be differences, however, in the formal process by which administrators address Title IX complaints, as well as the definitions of sexual harassment used.
“But even if improper conduct falls outside the definition of sexual harassment, it likely would implicate other student disciplinary policies the district would simply address outside that process,” Hoffman explained.
Seneca Valley’s school board policy protects students from discrimination on the basis of gender, sexual orientations and pregnancy status, and outlines its own complaint procedures.
A separate board policy also ensures students are not denied educational opportunities due to pregnancy, childbirth or parenthood. Similarly, Hoffman said students at Seneca Valley are able to access restrooms consistent with their gender identity – a right protected under the new Title IX rules.
“And so the fact that we've got these new regulations specifically addressing that wouldn't effectuate any difference among the buildings,” Hoffman said. “Seneca Valley has presently and will continue to provide access to facilities consistent with gender identity.”
State officials say the injunction won’t affect state laws protecting LGBTQ+ students
State laws could also provide some stability for school districts implicated in the Kansas injunction. The new Title IX regulations effectively duplicate parts of the commonwealth’s anti-discrimination law, the Pennsylvania Human Relations Act, which already includes gender identity and sexual orientation in its definition of sex discrimination.
“And so the same obligations apply to schools, regardless of whether they are subject to the Kansas injunction or not,” Moon with the Education Law Center explained.
Moon added that the Kansas injunction only limits federal education officials from enforcing the new Title IX rule in the select schools when a student files a complaint. It does not have any effect on preexisting district or state measures that protect the rights of LGBTQ+ students or pregnant and parenting students.
“The Kansas ruling does not have any effect at all on our state anti-discrimination law, which also requires schools to have affirming policies that protect LGBTQ students from discrimination,” Moon said.
Pennsylvania Attorney General Michelle Henry said in a statement Tuesday that her office is working with partners “to ensure schools remain safe havens for student learning and achievement.”
Together with the California Office of Attorney General and the New Jersey Office of Attorney General, Henry has submitted a series of court briefs defending the new Title IX regulations.
Officials with the Pennsylvania Human Relations Commission also said they are working to protect students under Title IX. The commission enforces the state’s anti-discrimination laws, including the Human Relations Act.
“The Pennsylvania Human Relations Commission is committed to its duty to protect all students from illegal discrimination,” said PHRC Executive Director Chad Dion Lassiter. “A student’s sexual orientation or gender identity should not prevent them from receiving a quality and equal education.”
