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Title IX, the landmark 1972 law that bars sex discrimination in schools, has been making headlines lately. No fewer than 26 states have sued to block the Biden administration's regulations to carry out Title IX's guarantee—purportedly to preserve "Title IX and protections for women and girls." Now the cases have landed at the U.S. Supreme Court, which will decide in the coming days whether the rule can take effect on Aug. 1 as planned.
Nominally, the dispute is about inclusion for transgender kids. Many of the challenges are premised on parts of the rule requiring fair treatment of transgender students, such as prohibiting school staff from purposefully and repeatedly misgendering trans kids. This provides important clarity for school staff yet is legally unremarkable—the federal government already determined that intentionally and persistently misgendering someone can be a form of gender discrimination nearly a decade ago. What's more, that conclusion does not threaten free speech, despite claims in many of the lawsuits.
Provisions related to schools' obligations toward trans students, though critical, make up a fraction of the 423-page rule. But Republican-led states are asking judges to strike not only provisions that discuss gender identity, but the entire regulation—meaning that Title IX's key protections for pregnant and parenting students are on the chopping block, too.
With this tactic, the lawsuits are using attacks on trans kids, who are drowning under a tidal wave of anti-trans legislation, to roll back other rights for women and girls—even jeopardizing pregnant girls' ability to complete high school on equal terms as their peers. What's more, they do so in the name of protecting women and girls—even though attacking trans people does nothing to address the real problems that women and girls face. While the rule falls short in other respects, the red-state strategy turns Title IX upside down. Yet it has succeeded in blocking the rule in 15 states and schools in hundreds of counties nationwide.
Protections for pregnant students weren't always a partisan issue. From the very first regulations issued by the (Republican) Ford administration in 1975, Title IX has been understood to protect pregnant and parenting students from discrimination, ending the once common practice of forcing pregnant students to drop out of high school. Even so, only about half of teenage mothers receive a high school diploma by age 22. The new regulations fill some of the gaps, spelling out how schools must respect student and staff needs related to pregnancy and childbirth, such as providing a clean space and break time to pump breastmilk.
The two-faced treatment of pregnant women and girls isn't limited to Title IX. Nineteen states are actively seeking to block one of the most important developments for pregnant people in the United States in nearly half a century—supposedly to "protect pregnant women." Thanks to the Pregnant Workers Fairness Act, millions of workers in this country no longer have to choose between a healthy pregnancy and a paycheck. But outrage in some corners over accommodations related to abortion care has eclipsed the bulk of the Biden administration's 125-page rule, most of which is dedicated to topics like how pregnant workers can request accommodations such as extra bathroom breaks or carrying a water bottle during long shifts. Thankfully, these claims haven't gained purchase in court so far, but lawsuits remain pending.
As for Title IX, lawmakers who are challenging the rule—and judges who will decide its fate—would do well to remember that pregnant people already face bullying, harassment, and discrimination. Addressing these problems is core to women's equality and gender justice. Choosing to worsen them by threatening protections under Title IX would be cruel enough; doing so in the name of women and girls is pure hypocrisy.
Ria Tabacco Mar is director of the ACLU Women's Rights Project.
The views expressed in this article are the writer's own.
