The U.S. Department of Education (ED) issued a notice of proposed rulemaking (NPRM) for  Title IX of the 1972 Education Amendments that could have more far-reaching effects than is obvious at first glance. Section 106.2 defines “hostile environment harassment” as “unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” The NPRM also redefines “sex” to include “gender identity.” Others have discussed how the redefinition of sex will require schools to allow students to participate in athletics according to their gender identity rather than their sex. In addition, the new rule will require schools to address students according to their gender identity (e.g. name and/or pronoun) in order to avoid charges of hostile environment harassment. In its publications and statements, ED has also cited authorities which indicate that schools may hide information about a student’s “gender transition” from parents, if the school suspects that the parents are not in total agreement.

The NPRM cites the California Department of Education’s advisory and a Nevada school policy that allow a student’s gender identity to be hidden from parents in the name of “safety” and “privacy.” The California document is a legal advisory which links to an FAQ that states, “With rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student’s parents.” The FAQ also states that the Family Educational Rights and Privacy Act (FERPA), which would normally give parents access to a student’s school records, may not apply to transgender or nonconforming students who do not want to disclose their gender identity. A Washoe County, Nevada policy consistent with this approach states, “Staff shall not disclose information that may reveal a student’s transgender or gender non-conforming status to others, including parents/guardians or other staff members, unless there is a specific ‘need to know,’ they are legally required to do so, or the student has authorized such disclosure.”

The Biden ED has also indicated in other settings that schools may keep a student’s desire to assume a different gender identity secret from parents. In June 2021, one year before the NPRM was published, the Biden ED issued a “Fact Sheet on Transgender Students” stating that a student’s choice of pronouns is private and should be kept confidential unless the law requires disclosure. In April 2022, ED hosted a webinar entitled “Supporting Transgender and Nonbinary Students in K-12 Schools.” A principal who was an official speaker at the event said that her Utah middle school would not tell parents that their child was transitioning to a different gender identity if they were not “supportive.” And in May 2022, Rep. Jim Banks (R-IN) questioned Secretary of Education Miguel Cardona at a hearing of the House Education and Labor Committee about whether parents have a right to be informed about their child’s gender transition. Cardona refused to answer affirmatively, citing the need to provide a “safe” environment for students.

The NPRM states that, “For the many schools that have long maintained policies and practices that generally permit students to participate in school consistent with their gender identity, the proposed regulations may not require any change.” The clear implication is that the proposed regulations will require schools to adopt students’ pronouns and names according to gender identity if these policies are not already in effect.

The NPRM clarifies that “hostile environment harassment” is conduct that is “undesirable or offensive” and causes “mental or emotional distress.” Under this admittedly “subjective” definition of harassment, the Biden Administration could launch a Title IX investigation into any school that declines to comply with students requests to use different names or pronouns, or informs parents about their child’s request to adopt a new gender identity. This is exactly the argument that California and Washoe County expressed in support of their secret gender transition policies and that ED has endorsed.

Schools across the country are already secretly transitioning students, complying with Biden administration “guidance” that already started imposing its Title IX gender identity theory back in 2021. Parents have filed lawsuits challenging policies in Virginia, Wisconsin, Iowa, California, and Florida. According to a leading medical expert, using names or pronouns that correspond to a child’s perceived gender identity is a “psychosocial treatment that will increase the odds of long-term persistence” of gender dysphoria. Therefore, these parents argue that schools are usurping their right to direct their children’s mental health care in accordance with their own values and judgment.

Instead of supporting parents’ rights to direct the education and the health care of their children, the Biden Administration’s proposed rule seems to adopt policies that treat parents with suspicion until parents prove that they will support their child’s gender transition. The Obama Administration, in its final days, investigated schools that did not conform to its redefinition of sex in Title IX. In one tragic case, a California school that faced such an investigation then supported the state’s removal of a student from her mother’s home for the purpose of gender transition. While in state custody, the student’s mental health declined, and she took her own life.

Parents know their children best and have the constitutional right to direct treatment of their children’s mental health. Policies made pursuant to the new Title IX rules could keep parents in the dark and prevent them from exercising their fundamental rights. This will put more confused and vulnerable children under the increased power of an expanded administrative state.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.