Conservative lawmakers are reframing civil rights laws and challenging the rights and protections for transgender and nonbinary people. An attorney and veteran journalists help reporters understand how these actions affect transgender and nonbinary youth.
Photo credit: Bigstock/Creatista
During his inauguration speech in January, President Donald Trump stated, “As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female.”
He followed the declaration with a series of executive orders that ban schools from teaching topics related to gender identity, bar transgender girls from participating in women’s sports in schools, and broadly challenge the legal existence of trans and nonbinary people. These orders come on the heels of hundreds of similar state laws passed since 2021. Those laws include dozens that specifically restricted public school administrations’ ability to make decisions about curricula, facilities and student wellness across the United States.
As education journalists, these attempts to regulate K-12 public schools and higher education aren’t new to us. But the immense scale, increasing pace, and questionable legality of federal action raises new questions about how to accurately inform the public.
Learn from a legal expert and fellow reporters about civil rights law and how to accurately and ethically contextualize the effects these actions have on trans youth.
1. The federal Civil Rights Division bars discrimination against all U.S. people and prohibits discrimination based on several characteristics, such as gender identity. What rights and legal protections do transgender people have in schools after Trump’s executive orders on transgender people and policies related to diversity, equity and inclusion?
Heiser: Transgender people still have the anti-discrimination rights under all protected classes, including sex. Title IX still applies to transgender people. What the U.S. department Office for Civil Rights [OCR] has told us is that they will not think of harassment or discrimination based on gender identity as a violation of Title IX.
With the gutting of OCR, and the current administration’s demonstrated willingness to weaponize what little resources are left to target political hotspots with “targeted investigations” (i.e., OCR proactively going after schools it reads about in the newspaper instead of reactively waiting for a complaint to come to them), students with genuine, legitimate complaints of discrimination are going to look elsewhere for investigation and relief.
2. To your point, the Office for Civil Rights has been decimated. How will this affect transgender youth and other vulnerable groups?
Heiser: OCR has seen a dramatic increase in complaints since the pandemic (8,934 complaints received in FY2021, slowly and steadily increasing up to 22,687 complaints received in FY2024). Without OCR, students can file litigation (costly, time consuming, and not an option for the vast majority of families) or file complaints with their state agencies.
Many states do not have the state statutory legal protections that federal law provides, and even those that do have good legal protections do not have state agencies equipped and resourced to handle the deluge of complaints that will flow into states when the federal department is no longer viable.
3. What are the legal limits to what the Trump administration can or can’t do when it comes to transgender rights in schools?
Heiser: The Trump administration has funding at their disposal, but the courts have had a much more friendly take on transgender rights in schools. Several of the Federal Circuit Courts have recognized that Title IX applies to transgender and gender nonconforming students for many years. Many state courts have recognized those rights. Many state laws provide statutory protections for transgender children in schools.
I hate to sound like an eighth grade social studies teacher — although I was an eighth grade social studies teacher — but it’s really a checks and balances thing. The Trump administration has the right to withhold certain funding, but the courts can put checks on that. What we already have seen is a lot more lawsuits working their way through courts and a lot more reliance on the judiciary branch to enforce some of those rights.
4. How can reporters recognize these limits?
Rummler: We’re kind of already past the legal limits, and we are seeing this in the lawsuits — there’s way more than just the ones about trans people. Judges have been blocking a lot of these executive orders and the policies coming from them pretty forcefully.
These orders echo what’s been going on in red states for years. The bottom line with those laws is that they don’t mean that every single teacher in every single school follows them. There are teachers I’ve spoken with in Florida and Kentucky that have kept on hanging up their pride flag even though they’re not supposed to. This is such an uncertain moment. Will the federal government protect my trans kid? Will the federal government investigate cases of discrimination? The answer on that is kind of unclear. The civil rights protections still exist. At the end of the day, even if the federal government won’t protect your kid in this instance, that’s not to say that teachers in school, schools themselves, and states won’t step in.
Generally, I’d recommend talking with experts to understand what’s normal and what’s not normal [when it comes to the federal government’s role in education]. When it comes to covering trans issues, it means talking to experts who worked at the Department of Education or who know the laws really well.
1. Is the Trump administration’s investigation into a Denver high school that created an all-gender bathroom, as reported by The Wall Street Journal, at odds with Title IV of the Civil Rights Act of 1964, which ensures “that all persons regardless of their sex are provided equal educational opportunities?”
Heiser: This is political theater. Colorado state laws and how Title IX, Title IV, and Title VI interact with each other is much more complex than what Trump’s administration puts out in a press release. So I think that particular directed investigation was meant to send a very strong political message.
2. How should reporters cover these issues in which two underrepresented groups, trans students of various genders and cisgender girls in this case, are seemingly being pitted against each other?
Barnes: Part of it is recognizing that there are multiple opinions and perspectives across these groups. There are cisgender girls who very much feel that their opportunities in sports are compromised by the inclusion and participation of transgender girls and women in those sports.
There are, however, cisgender girls who don’t care, and there are cisgender girls who are affirming. We see that even across activist lanes.
There is Riley Gaines, who is an anti-trans activist, and there’s Megan Rapinoe, who is a high-level athlete who competed in women’s sport and who is always vocally supportive of transgender inclusion. And then there are lots of people who are completely ambivalent. And frankly, that kind of fracturing of opinion is also true amongst trans people.
There is a desire to boil down a perspective as being embodied by one group or another. But on this issue, lots of people have very varied and nuanced thoughts and opinions across all demographics that are applied here. The best thing that we could do as journalists is capture that wide range of perspectives.
Rummler: Several policies that have been pushed at the state level for a long time, including school bathroom bans and efforts to prevent trans girls from playing school sports with cisgender girls, rely on the rhetoric or belief that we have to protect our [cisgender] girls.
I’ve spoken with experts who have talked about how these narrow beliefs about femininity being projected onto both cisgender and transgender women are part of how anti-trans rhetoric is fueling discrimination and violence against women of color, including cisgender women. This is something that I think reporters should be curious about. Dig deeper into this rhetoric to see who it affects and to think critically. Is this playing out the way that these people say it’s playing out? Is there the data to back it up?
1. Presidential administrations seem to have their own interpretations of Title IX. Why do interpretations vary, and are there limits to these shifts that come with each presidential administration?
Barnes: The interpretations vary because of the ideological differences on what sex-based discrimination means. So in my reporting, it’s been articulated to me as two different schools of thought.
The more conservative side, I think it’s fair to say, has an interpretation of sex as being one that is determined at birth and is fixed and immovable. That is what you are – the end. But for folks who argue for gender identity and sexual orientation as being included under sex-based discrimination, there has been evolving case law around that.
2. The Supreme Court’s Bostock v. Clayton County ruling found that federal law prohibits workplace discrimination based on sexual orientation and gender identity under Title VII. Do the Trump administration’s recent executive orders challenge this ruling in schools? How do you expect things to play out?
Heiser: Biden’s administration said, we’re going to take what the Supreme Court said in Bostock, and we’re going to apply it to schools as well. Which, quite frankly, makes a ton of sense from a legal perspective: Most of the time, when you have an interpretation of Title VII, it applies to Title IX as well, and vice versa, because the laws use the exact same language.
So President Trump’s administration’s recent executive order does not align with Bostock, but Bostock wasn’t about [students in] schools; Bostock was about workplaces. So technically, legally, his executive order doesn’t violate Bostock. But what I think it does set up is a Title IX case to go to the Supreme Court and ask, “Do you also interpret Title IX the same way you interpreted Title VII in Bostock?”
1. What questions should reporters be asking about school DEI policies?
Barnes: My expectation is that they will continue to come under increased scrutiny from either state actors and or federal actors. I think that’s been made pretty clear. I think there’s an announcement every week about a different sport entity [a governing body] under investigation. These are entities that exist in states that have inclusive policies.
So the question is, what law applies, and who gets to enforce that law? When schools and districts and educational entities change their policies preemptively, it’s worth a question of why and reporting that out. What is the scope of the change? Why is it happening? Is there reason to be afraid of federal action?
Rummler: I think reporters should be asking: Who is most affected by this; who is being hurt the most, and what are the consequences? Because the consequences may be more significant and more harmful than it first appears, especially in terms of bathroom access. This does not just affect trans people. More cis people, especially women, are being targeted by random people who think they’re in the wrong bathroom. There’s also plenty of data showing how it’s harmful for students if they can’t go to the bathroom they want to go to in a school.
2. Could you speak to how reporters can better understand how these policies affect different gender identities and different groups of trans people?
Barnes: Basically, somebody who’s assigned male at birth is ineligible for a wide range of sport activities at a variety of levels, whether we’re talking about K-12 sports, college, club, intramural and competitive college. Twenty-five states have that law, and then Alaska has a restrictive policy at the high school association level. Among those 25 states, four states explicitly also restrict transgender boys’ ability to play boys’ sports. Most of the laws don’t say anything about transgender boys. For those who are nonbinary or genderfluid or nonconforming, they’re not really considered in the laws as they currently stand at all.
Rummler: Start with income. Black trans people are especially vulnerable to discrimination and face a lot of it. If you’re Black and trans, you’re facing dual discrimination on an institutional level and on a personal level. A lot of trans people have been moving to more welcoming states, and now more trans people are thinking about leaving the country. But who can afford to move? If you have money, you’ll be able to find a way to make it work. Economic poverty is a unifying factor of what kind of trans people are most harmed right now.
3. What’s the best way for reporters to determine how welcoming schools are to trangender students and if schools are complying with these orders or not?
Rummler: You have to connect with the teachers, especially LGBTQ teachers. Are there any people who are resigning out of protest from this school or from the state? Find folks who can talk to you honestly about what’s going on and people who really care.
Heiser: The grassroots community organizations know exactly what school districts are welcoming and which aren’t, mostly based on lived experience. Just touring the schools is really helpful too. I look for very specific things.
I look for signage like, “Everyone is welcome here,” obviously. I look for rainbow flags. I look for rainbows — a lot of schools aren’t able to put rainbow flags up anymore, but teachers will put actual rainbows up. I look at bathrooms, especially in colleges and higher ed — it’s really easy to see how they label their bathrooms.
The other thing that’s always easy to do is just to search public records for lawsuits and complaints that have been filed against a school.
4. How can reporters understand the impact the Trump administration’s targeting of transgender people is having on trans youth?
Barnes: If you can speak to the youth themselves and their families who are directly experiencing these impacts, that, to me, is the best reporting in terms of understanding the emotional and physical toll. For a lot of folks who are just now reporting on these topics, it still feels like this is kind of a new crisis. But it’s been my experience as somebody who’s been reporting on this for a while that this is a culmination.
Trans people and their families have felt in crisis for many years. There is data that already exists around that. Local organizations who are doing that work in your area could provide good insight, as well as allow you to build trust and rapport and then be able to speak with families who are directly impacted.
5. How can reporters responsibly share the voices of trans students? Talk a bit about the safety and ethics of quoting youth, as well as ways to consider the potential consequences for youth going on record.
Heiser: We have plenty of statistics that tell us trans kids are not the only ones subjected to the discrimination. It’s their siblings and the friends of the trans kids who are subjected to additional discrimination.
If it’s not safe for a trans kid to speak up and use their name, it might very well be that they have a friend or a sibling or a parent who’s willing to speak up and speak about how this has affected them. A lot of the kids who are able to speak publicly are significantly older, or they’re college-age kids, so we’re missing a huge chunk of the people this affects. This affects kindergarteners. This affects every kid in K-12. We’re really missing that voice [of younger trans children], and part of it is because it’s not safe to put their names and pictures out there.
Barnes: First, be as transparent as possible about what you can guarantee and what you cannot in this environment. I don’t think safety is something that can be guaranteed. We can mitigate risk if you’re willing to accept an anonymous quote, or use first names. But that is a mitigation; it is not an elimination. And I think that is an important thing to recognize.
Second, be as transparent as you possibly can about the scope of your outlet. The conversation that I have with my editors and with possible families as a national writer is slightly different than those who are in local communities. Sometimes the depth of exposure in a local community is actually more scary than a wider exposure with the national outlet, for example. But those conversations are different, and they have to be had.
Third is thinking about who is supporting this young person.
Because of the risk of exposure, I think it’s important to acknowledge that there may come a time where the risk is too great. While we have to tell our stories about these voices directly, it is also ethically problematic and fraught.
I would suggest having a very real and honest conversation with yourself as a reporter, having a similar conversation with your editor, and determining the parameters you are comfortable with editorially, and then communicating those parameters very clearly to the possible subjects and sources of your story.
Sometimes there is a desire to “get the story by any means necessary.” Usually that comes with bending the parameters that are requested by prospective families or sources and subjects, and getting them to agree. In this particular environment, I think that actually can be very damaging. We should not do that under any circumstances.
Your post will be on the website shortly.
We will get back to you shortly