TITLE IX & GENDER EXPRESSION

"Our proposed changes would fully protect students from all forms of sex discrimination...it makes clear that those protections include discrimination based on sexual orientation and gender identity."
- Miguel Cardona
U.S. Secretary of Education in the Biden Administration

Breaking the Silence: Gender Expression in K-12 Education

In the intricate landscape of K-12 education, the limitations on gender expression are increasingly coming under scrutiny, notably within the framework of Title IX. Title IX, intended to protect against discrimination based on sex, often falls short in addressing the nuanced aspects of gender identity. Dr. Angela Campbell of Cabrini University provides insightful perspectives on the implications of these constraints, while Charles Bush, an LGBTQIA+ advocate and author of Every Variable of Us, shares his personal narrative and highlights the inadequacies of school policies in protecting students' rights to freely express their gender identity. In addition, hear from Nancy Flanagan Kelly, a school counselor in Central Bucks County, Pa., who explains the challenges students face in navigating policy intricacies and book bans. Finally, Brian Dittmeier of GLSEN describes the harms of sex stereotyping and the importance of gender expression in K-12 education.

Battles Over the Proposed Revisions to Title IX

Title IX is a landmark anti-sex discrimination law passed in 1972 that opened countless doors for women that were previously closed to them. 

Title IX states “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” However, as of 2023, there is no clear and definitive guidance on whether Title IX protections apply to expressions of gender identity and sexual orientation. 

In 2021, President Biden proposed to extend Title IX’s anti-discrimination protections to include these characteristics; however, so far, his administration has not released its final guidance (as of December 2023). 

The guidance from the White House currently states, “Section 1.  Policy.  Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”

If the U.S. Department of Education adopts this proposed guidance, then some states across the U.S. would have to change their current laws that now discriminate against talking about sexual orientation and gender identity in the classroom. As reported in the New York Times, “Five states, including Florida, ban or limit how teachers can talk about gender identity and sexual orientation, with at least 10 states considering such measures, according to the National Conference of State Legislatures.” 

In early 2023, The U.S. The Education Department proposed a Title IX change. This would include gender identity in the law and would coincide with Biden’s proposal and his executive order. These are the first steps in getting this law passed and the process usually takes months to years. If this new law gets passed it will include gender identity and would protect transgender students in federally funded schools. 

When did these bands like Florida’s “Don’t Say Gay” bill come about? This bill was signed by Governor Ron DeSantis in 2022 and states, “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards." 

The recent push to ban gender expression comes from conservatives targeting liberal ideas in schools and removing them. Florida Gov. Ron DeSantis says this is necessary to combat liberal influence in schools. Other influences are local activists or school boards arguing teachers need more oversight to ensure classroom materials are appropriate for their children. 

According to Brian Dittmier of GLSEN, “I think first and foremost, what we see is that efforts to ban gender expression are, frankly, against the law.”

GLSEN is one of the leading national LGBTQ organizations working on K-12 education issues. They address bullying, harassment, discrimination, and assault in school settings, as well as setting up positive mental health outcomes and educational opportunities for LGBTQ students. GLSEN has championed LGBTQ issues in K-12 education since 1990. 

“There's a Supreme Court precedent going back to the 1980s that talks about sex stereotyping as a form of sex discrimination,” Dittmeir said. “Sex stereotyping can include perceptions of how someone should dress and act to be, quote, unquote, in accordance with your expected sex or gender. And so what we see now with efforts to suppress gender expression is that these are long-standing legal principles that schools are now setting aside in an effort to crack down on LGBTQ individuals in particular.” 

The impacts of these bans that have been adopted in mostly Republican-dominated states have a direct impact on people’s lives. 

For example, GLSEN reports, “One in five students is disciplined because they are wearing clothes that are inconsistent with their gender identity. That higher level of discipline and punishment by school officials has adverse effects because it leads LGBTQ children to withdraw from their school environment, so they have a lower sense of social belonging, which can affect their academic performance. You'll see lower GPAs. You'll see the lower likelihood of pursuing post-secondary education, and you'll see higher rates of absenteeism,” said Dittmeir. 

Florida is not the only state that has enacted laws prohibiting the teaching of gender expression in K-12 classrooms. Two other states, Alabama and Arkansas, have passed laws similar to Florida’s since last year. 

Many of these laws came about post-pandemic. In 2021, a group called Moms for Liberty was formed to campaign against COVID-19 protections in schools. Now, they also fight to ban teaching sexual orientation and gender expression in schools.

Tiffany Barbato, chapter chair of Delaware County (Pa.) Moms for Liberty, said, “The transgender community [is] saying that we are against transgendered or the LBGTQ+ community. Certainly not true. We value every human, every parent, no matter what. We just obviously, do not agree with having gender identity or gender ideology taught in the classroom.”

Defense of Democracy began in 2022 to oppose the efforts of Moms for Liberty. DOD is a grassroots organization that advocates for a public education system that supports and enhances shared experiences regardless of religious beliefs, cultural background, or sexual orientation.

Defense of Democracy has solutions in place to address some of the policies adopted in conservative-leaning states. Their advocacy has had a direct positive impact on people all over the country. Defense of Democracy has fought back against book bans and provided protection and advocacy for public schools and teachers.

“These extremist, anti-democratic anti-government groups usually focus on three things,” Karen Svoboda, co-founder of Defense of Democracy, said. “They have this trifecta of patriotism, family, and spirituality. They weaponized all three of those things for use in their agenda of destroying our country. So what we did in response to that was we formed three affiliate groups within Defense of Democracy.” 

These three groups within the Defense of Democracy are students defending democracy, veterans defending democracy, and faith leaders defending democracy. 

“We have our faith leaders being able to respond to that in a very loving way…that reflects their belief in a higher power,” said Svoboda. 

Defense of Democracy invites all faith leaders of every religion to their organization. They believe that religion isn’t just about one small group imposing one type of belief on public schools. 

“We have Veterans Defending Democracy, and this has been one of our most successful affiliate groups. These are veterans who recognize this is a threat to the country, and they have taken an oath to support our country at home and abroad. They have stood shoulder to shoulder with our volunteers at protests. They have been spit on when they have stood there, and they have given comfort and a sense of safety to our volunteers when they speak,” said Svoboda. 

Veterans Defending Democracy is run by veterans who support public education by running for school boards or organizing protests.

“And our Students Defending Democracy are the answer to the family aspect of this. These are young people who are helping create content because truly, these extremists are not going to find young adults who are going to be like, ‘Oh, my God, sign me up, I want to, have my civil rights taken away.’ So that's something that we know we can mobilize a lot easier than they can. So those are the three things we use for that,” said Svoboda. 

Students defending democracy host events like book discussions with both students and authors. They also host Readouts, a nationwide event started by Defense of Democracy to celebrate the reading of banned books. Volunteers read banned books in a virtual discussion to raise awareness. 

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Giving Gender Identity a Voice in the Classroom

Title IX’s guidelines on gender expression have parents, students, and educators feeling polarized. The current climate of red and blue-state schooling led the widely divergent organizations, Moms for Liberty and Defense of Democracy, to mobilize in schools and communities. Tiffany Barbato from Moms for Liberty Delaware County believes students should not be exposed to gender expression in education, whereas, Karen Svoboda, one of the founders of Defense of Democracy, believes schools should champion gender expression in the classroom. Dr. Angela Campbell, Director of Diversity, Equity, Inclusion, and Belonging at Cabrini University explores the avenue of compromise. Other voices include Charles Bush, author, and LGBTQIA+ advocate, and Brian Dittmeier, Director of Public Policy at the Gay, Straight, and Lesbian Education Network (GLSEN).

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