Right-wing assaults on trans rights aren’t stopping. Title IX could be a weapon against them

ANALYSIS: Protection from discrimination on the basis of sex can and should be used to protect kids like Nex Benedict 

Nex Benedict’s death was gutting, in part, because it felt inevitable. Since 2020, the GOP has focused, with remarkable intensity, on targeting trans children at their schools. Oklahoma state superintendent for education Ryan Walters campaigned on it; in a June 2023 video, he described the acceptance of trans people as “an assault on truth,” and promised to go back to “telling kids that there’s two genders, it’s biology.” He was particularly concerned about trans students using bathrooms. 

Well: Nex Benedict, a 16-year-old Oklahoma student, was assaulted and beaten unconscious in a school bathroom this February. Twenty-four hours later, he was dead of an apparent suicide. The relationship of cause and effect is too obvious to be worth belabouring. 

This part, though, is worth spelling out: In his video, Walters described his attack on trans students as “upholding the law.” In fact, he was promising to break it. Though it’s easy to forget, it is actually not legal to discriminate against trans students in American public schools, any more than it is legal to discriminate against any other marginalized group. Specifically, the federal civil rights law Title IX states that any school that receives federal funds may not discriminate “on the basis of sex.” This rule has explicitly covered trans students ever since the Supreme Court’s Bostock ruling in June 2020, which found that discrimination against trans people was “discrimination on the basis of sex” because it stemmed from non-conformity to sex assigned at birth.

What is more, the Biden administration has made a point of supporting this interpretation of the law— sometimes. In 2021, the Department of Education issued a rule formally stating that Title IX protected trans and queer students. Biden’s new Title IX rules, released on April 19, also specify that trans students are protected from discrimination—making it “crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” according to education secretary Miguel Cardona. As usual, though, Biden’s support of trans people is shaky, and more symbolic than actual. In an act of tremendous moral cowardice, a rule that would have specifically protected trans athletes was put “on hold” in order to avoid controversy during an election year. 

So here we are: Republicans are openly violating anti-discrimination laws. Democrats are tepidly supporting them. Multiple advocates say that the issue is destined to end up in front of the Supreme Court.

“Opponents of equality, particularly right-wing lawmakers, are hellbent on rolling back protections for LGBTQ2S+ students, particularly trans students, and as a result, are very much dedicated to passing laws that are in conflict with Title IX in the hopes that a conservative judiciary will side with them,” says Sarah Warbelow of the Human Rights Campaign. “At some point, it’s almost inevitable that the Supreme Court will have to address this issue.” 


Given the current makeup of the Supreme Court, the prospect might rightfully strike dread into many hearts—but Warbelow is actually optimistic here. “Given the Bostock ruling, it would be shocking if even our current conservative Supreme Court didn’t interpret Title IX to provide base-level nondiscrimination protections for LGBTQ2S+ students,” Warbelow says. She adds that on two separate occasions, in recent years, the Supreme Court has had the occasion to overturn rulings which used Title IX to protect trans students. Both times, it let the good rulings stand. 

Courts can also interpret Title IX broadly and generously. In West Virginia, for instance, the ACLU and Lambda Legal did successfully use Title IX to overturn a trans sports ban—even though the Biden administration has refused to clarify whether trans athletes are covered by the rule. 

“Even going back before the Bostock decision, federal circuit courts, which are the law of the land, have held that federal nondiscrimination protections on the basis of sex include protections for trans folks, going back 10, 15 years, almost 20 years in some cases,” says Sasha Buchert of Lambda Legal. “They’ve also repeatedly held that it applies to employment law, to the Violence Against Women Act, even the Equal Credit Opportunity Act. So, it’s like these top-of-the-line courts and circuit courts have repeatedly held that that’s the case, and the Supreme Court is just the icing on the cake.” 

This brings us back to Nex Benedict. On March 1, the HRC successfully opened a Title IX investigation of the Owasso school district. In most cases, Title IX has been used to cover trans students who were denied specific facilities or accommodations—bathrooms, or sports teams—but the overarching climate of fear and bullying, the sheer mental and emotional load of knowing that the most powerful adults in your state are working to make your experience of school unbearable, also constitutes a clearly discriminatory burden on trans students. 

“The law has long been interpreted to prohibit the creation of a hostile environment,” says Warbelow. “This has often [arisen] in the context of sexual harassment.” Last May, the Department of Education’s Office for Civil Rights found that the Forsyth school district, in Georgia, had failed to “ameliorate any resultant racially and sexually hostile environment” arising from its policy of banning books that addressed racism and LGBTQ2S+ topics. The district was forced to take recommendations from the students who had been harassed, and was subject to oversight from the OCR until they were implemented. 

Title IX is not the only tool being used to pursue justice. In its complaint to the Department of Education, the HRC also invoked a statute that prohibits discrimination on the basis of disability (since disability law has sometimes been interpreted to cover gender dysphoria). Separately, the HRC asked for a Department of Justice investigation, which would allow the DOJ to take over from local law enforcement if they were unwilling or unable to properly investigate the case—which makes sense, given the dismal history of the Oklahoma medical examiner’s office and the overall sketchy behaviour from local law enforcement

Title IX is a uniquely hopeful intervention, though, precisely because it concerns the state’s responsibility to educate all trans and queer students. We know, based on previous reporting, that other students at Nex’s school were harassed over their gender or sexual identities, and that some of them were unable to attend school in person as a result. (In a series of emails, a representative for the Owasso school district denied any wrongdoing, stating that “to the district’s knowledge, there were no reported bullying incidents by Nex or on Nex’s behalf during the 2023–2024 school year.” When asked if there had been any other incidents of students being harassed or bullied based on gender and sexual identity, the representative said it was impossible to know, because “the district does not maintain a database of which students identify as LGBTQ2S+.”) In order to settle the Title IX investigation, the Owasso school district would have to commit to a plan to make those students safe. 

“The sad truth of the matter is that nothing can be done to bring Nex back,” says Warbelow. “The best that we can hope for is that no other young person ever goes through what Nex went through.”

This is also a strategy with a low bar for entry, which can be adapted by students and families in any school district where bullying and institutional transphobia have gone unchecked. Frankly, Republican lawmakers are able to get away with passing discriminatory laws against trans youth, and school staff are able to get away with endangering them, because they rely on those kids not to know their rights. 

But the method the HRC used to initiate the Owasso Title IX investigation of Owasso was pretty simple: They asked. The form to report a Title IX violation is available online at the click of a button. If you or your child are in danger, you can ask for an investigation too. 

Investigations rely on having many people willing to testify to the school’s discriminatory environment—Warbelow, for example, says that the Department of Education is currently looking to collect testimony from other students at Nex’s school. (The Department of Education itself does not comment on investigations that are still in process.) Collecting that testimony can be difficult if students are scared to speak up. This is why advocates recommend getting plugged into a larger affinity group, like a Gay-Straight Alliance. The burden of pressing Title IX complaints and pushing back on school discrimination should not fall on individual students or their families. Discrimination affects trans and queer kids as a class, and they can best fight it if they organize as a group. 

It’s also true that the option of actually filing a lawsuit (as opposed to a simple complaint, which anyone can make) is intimidating—not to mention financially out of reach—for most people. This is why we have advocacy groups; the ADF and other conservative organizations are famously strategic about funding or providing aid to lawsuits that might roll back trans rights. But that strategy works both ways. 

“Lambda Legal, for example, has a help desk that can help folks navigate the process,” says Buchert. “We’re just as fierce and strategic and smart as ADF or any of these other groups that spend all of their time going after other people’s protections. But it’s not just us, it’s the ACLU, it’s the National Center for Lesbian Rights … there are so many fearless and smart strategic organizations doing this work. Folks aren’t alone.” 

Nex Benedict’s death felt like a foregone conclusion. The suffering of trans kids, all over the country, and especially in hostile school districts, feels inevitable. Unhappiness seems like a guaranteed part of growing up queer. It isn’t. It doesn’t have to be. Trans people do have certain civil rights, guaranteed to us under law. We should all know what they are, because the more often we exercise them, the more dangerous and inconvenient we make it for schools to endanger our kids. The assault on trans youth shows no signs of stopping, but we do not have to keep permitting it. Title IX is one weapon—not the only one, but a good one—that we can use to fight back. 

Jude Ellison S. Doyle

Jude Ellison S. Doyle is a journalist, opinion writer, and the author of two books, including Dead Blondes and Bad Mothers: Monstrosity, Patriarchy and the Fear of Female Power (Melville House, 2019) and Trainwreck: The Women We Love To Hate, Mock and Fear... and Why (Melville House, 2016). They live in upstate New York.

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