Michigan's public school boards are responsible for maintaining policies that comply with federal and state laws. Federal updates to Title IX laws mean that boards must follow routine practices to review and vote on policy changes.

Prevalent misinformation is prompting a new wave of school board meeting attendance and public comments. It's critical to understand the facts. Let's discuss common claims and questions about Title IX.

Q: What is Title IX?

A: Title IX is a federal civil rights law signed by Richard Nixon in 1972 to prevent sex-based discrimination, harassment, bullying, and violence in federally funded K-12 schools and colleges. The law initially helped to alleviate discrimination among women applying to colleges. Title IX defines harassment and specifies how to investigate reports.

Q: Why does Title IX change?

A: Lawmakers at the federal and state level pass updates to better define or protect marginalized groups. The timing of changes to federal and state civil laws rights don't always align, but states must follow their local laws. Many administrations, including Presidents Obama and Trump, have implemented updates to Title IX.  President Biden's changes aim to restore protections for all victims of harassment, which were restricted in 2020 to favor the accused and make it harder for schools to investigate. View this comparison chart to understand the differences between 2020 and 2024 definitions (National Women's Law Center). The implications of federal Title IX updates vary by state based on civil rights laws.

Q: What do the Title IX updates mean for Michigan schools?

A: Every K-12 school and college that receives federal funding must have at least one person designated as the Title IX Coordinator, which has been a requirement since 1972. The most significant implications for Michigan schools and students are how that Coordinator determines whether the criteria for harassment have been met and how schools must investigate incidents. View a comparison chart for a short overview of these changes. (National Women’s Law Center)

2020 Title IX Definition

Schools must address sexual harassment if it is so “severe” and “pervasive” that it “effectively denies” a person equal access to a school program or activity. (The Trump Administrationintroduced severe restrictions to favor the accused within a 2,033-page document.)

“New rule governing assault is nearly impossible for survivors to use” (TIME, May 14, 2020)

2024 Title IX Definition

Schools must address sex-based harassment if it is so “severe or pervasive” that it “denies or limits” a person’s ability to participate in a school program or activity.

Beyond the Nassar example, a recent Alpena, Michigan case highlights how, in March 2024, an elementary-aged girl was left without support after a boy inappropriately touched her. (Michigan Public Radio, March 13, 2024). Neither of these examples involve LGBTQIA+ individuals, but they address far more common issues.

Q: What do the Title IX updates mean for Michigan bathrooms, etc.?

A: Schools follow federal and state laws, but Michigan is years ahead of the Title IX updates on this topic. Title IX revisions do not introduce any new changes for Michigan school bathrooms in 2024. The Elliott-Larsen Civil Rights Act of 1977 covers Michigan's civil rights laws (State of Michigan) and bipartisan legislation amended the Act on March 16, 2023 to include protections for LGBTQIA+ individuals.

The Elliott-Larsen Act prohibits discrimination in employment, housing, public accommodations, public services, and access to educational facilities based on "religion, race, color, national origin, age, sex, sexual orientation, gender identity, height, weight, familial status or marital status. The law also restricts employers from making employment decisions based on pregnancy, childbirth, or a related medical condition.

This means that Michigan schools evaluated the best way to provide student accommodations over a year and a half ago. The federal Title IX updates are not creating a first-time issue for schools in 2024.

Further, this topic and related policies have been active across Michigan districts since at least 2016:

• Federal law settles debate over transgender students and bathroom use, advocates say (MLive, March 29, 2016)
• Rockford superintendent sends letter to Michigan lawmakers about transgender bathroom policy (FOX17, May 13, 2016)
• Let it Rip: Michigan transgender bathroom policies (FOX2, April 24, 2016)
• Transgender bathrooms early focus in Michigan race (The Detroit News, August 31, 2016)

Q: What are some of the bathroom policies Michigan schools are implementing?

A: Between 2016 and 2023, each district created access to facilities in a way that works best for their community, buildings, and students that keeps them compliant with state and federal laws. Here are some of the example policies:

• Michigan schools take different approaches to LGBTQ policies (Michigan Radio, August 14, 2023)
• Treating each need on a case-by-case basis
• Providing access to single-unit restrooms and changing areas in school offices or faculty areas
• Requiring separate/individual hotel rooms during travel
• Creating gender-neutral facilities
• Hartland Schools
• Potterville Schools
• Plymouth-Canton Schools

Check with your local school district to confirm your policies, or review the district’s bathroom policies on their website.

Q: Why did Michigan lawmakers add protections for LGBTQIA+ individuals? Who supported this?

A: When Michigan’s Elliott-Larsen Civil Rights Act was amended in 2023, lawmakers noted:

Too many Michiganders still face discrimination, inequality, and attacks on their life, mental health, and property. In 2023, 74% of LGBTQ+ youth experienced discrimination based on their sexual orientation or gender identity and almost half considered suicide in the past year.

Twenty-two states and more than 100 cities have adopted these common-sense, inclusive and comprehensive protections for LGBTQ+ people.

Eighty-three percent of Michiganders support nondiscrimination protections for LGBTQ+ people. The legislation has widespread support from a number of organizations and individuals, including the Michigan Civil Rights Commission, the American Civil Liberties Union (ACLU) of Michigan, Corktown Health, the Detroit Police Department, medical professionals, faith leaders, spouses and parents. A number of businesses and economic organizations have also advocated for the legislation as a way to make Michigan a more welcoming, inclusive and competitive state. BASF, DOW, the Michigan Realtors Association, the Michigan Chamber of Commerce, the Detroit Regional Chamber, the Grand Rapids Chamber of Commerce, and Business Leaders for Michigan all have endorsed the legislation.

Q: Have there been any incidents in Michigan schools since March 2023?

A: There are 1,300,144 students enrolled in 2,959 K-12 schools across 539 school districts in Michigan. According to Bridge Michigan, 3,950 Michigan youths between 13 and 17 identify as transgender, which equates to .3% of the public school student population. Nationally, about 1.8% of all youth identify as transgender, according to The Trevor Project.  

There have been no reported incidents in Michigan or nationally involving transgender individuals harassing or assaulting others.

The University of Michigan researched the impact of bathroom policies and found, "The adult dialogue we hear in the media often includes a lot of fear and guesswork about how this issue may impact children in schools.” (Michigan Medicine)

Q: Do Michigan schools receive financial incentives or rewards for implementing the new Title IX updates?

A: No, Title IX is a civil rights and discrimination law. The only financial incentive is to follow the law so that school districts aren’t sued when failing to investigate the harassment or assault of anyone. Another example of why MSU's violations were so significant.

This financial compensation rumor could be because of politically controversial ESSER funding, which is emergency funding designed to help address educational issues arising from the pandemic by providing schools with resources to prevent, prepare for, and respond to the COVID-19 crisis (K12 Dive).

Remember that Title IX was passed under the Nixon administration to mitigate the discrimination against women applying to college. Since Title IX was introduced, there have been Title IX Coordinators in schools. Who gets paid or incentivized for either discriminating against hiring pregnant women or not? Or, who got paid for discriminating or not against women applicants to college? That’s the analogy.

Notably, the other funding connection is that Title IX applies to any institution that receives federal funding. This means private religious schools do not have to follow Title IX, unless they receive federal funding. In Michigan, using vouchers or student opportunity scholarships with public funds for private religious schools is illegal, so this would not apply. This is where the political response to Title IX comes into play and reveals why some groups are opposed to Title IX at all.

• There are ongoing efforts through organizations like The Heritage Foundation, Moms for Liberty and Young America’s Foundation, which co-authored Project 2025, to abolish the Department of Education because it houses Title IX.
• These groups would like to dismantle public education and advance a privatized model that prioritizes private religious schools and allows corporations to earn tax credits for diverting funds into scholarships.
• Private religious schools would like to be able to discriminate or decline enrollment without cause and despite the protections Title IX creates for girls against harassment and assault, they would like to be able to avoid discrimination issues if they receive any federal funding (public money).

For more on this, Professor Josh Cowan, PhD of Michigan State University, specializes in education policy and has published extensive research on privatization. (MSU)

• Record academic declines: Studies from research teams in Louisiana, Indiana, Ohio and Washington, D.C., show significant academic loss for students who used vouchers to leave public schools. The studies show losses in voucher programs surpass those experienced by students in New Orleans after Hurricane Katrina or by students nationwide during the COVID-19 pandemic.
• Benefit to existing private school students: Approximately 70% of students across nine states who utilized school vouchers had never been enrolled in public schools, indicating that these programs primarily benefit students already in private schools.
• Bailout for failing private schools: Studies from Milwaukee, home to the country’s oldest voucher program, reveal 41% of private schools participating in the program eventually closed.

Q: Do taxpayers need to pay for the cost to hire more people to implement the new Title IX updates?

A: No. Each school and district already have Title IX Coordinators on staff. The only change is to how they define harassment and pursue investigations.

Appropriate mental health support is a larger topic than Title IX. Separately, the state has been exploring ways to fill the need for professionals. (Chalkbeat) It could be the case as part of a district’s plan that existing staff collaborate with the Title IX Coordinator to implement a student’s individual plan. This does not take away from or require extra resources.

Q: Were the Title IX updates and state civil rights laws passed by legislators or unelected bureaucrats?

A: As previously explained, every presidential administration has the opportunity to update Title IX, and federal and state civil rights acts evolve. Laws are solely passed by elected representatives and signed into law by Governors or the President.

There are no more voices influencing Title IX than lobbyists or activists sharing research and voices on topics like protecting the 2^nd Amendment (National Rifle Association), or farmers offering input on The Farm Bill.

The National Education Association or Michigan Education Association has no more power over federal or state civil rights laws than Moms Demand Action has on the 2^nd Amendment.

The current administration desires to make it easier for victims to get help and to mitigate violent killings of LGBTQIA+ individuals or suicide due to extreme bullying. Remember the Alpena case, which isn’t even related to LGBTQIA+ individuals.

Q: Why did the schools keep this information about Title IX from the public?

A: The federal government, nor the state, nor any individual school district has hidden anything from Michigan families. Devastating Title IX rollbacks were widely covered in 2020, as were the efforts to reinstate protections in 2024. The government even delayed the updates multiple times because they listened to hundreds of thousands of public comment testimonies to ensure they got it right https://www.acenet.edu/News-Room/Pages/Biden-Admin-Final-Title-IX-Rule-Effective-Aug-1.aspx

The media cover Michigan’s Elliott-Larsen Act and updates to it.  https://www.littler.com/publication-press/publication/michigan-legislature-passes-amendment-elliott-larsen-civil-rights-act

These are publicly visible and applicable civil rights laws that are always transparent and clear.

Q: Can I speak at my school board meeting to ask them to decline passing updates based on the 2024 federal changes?

A: Anyone can speak during school board meetings based on the Open Meetings Act. However, Michigan school board members are not meeting to discuss whether each board member agrees with Title IX nor whether students should be given protections. This is not within their control. What is in their power is the responsibility to comply with laws. Failure to do so would subject them to millions of dollars in lawsuits for failing to investigate an assault or waste hundreds of thousands of taxpayer dollars on lawsuits like Ottawa County has experienced.

Q: Our religious beliefs do not support LGBTQIA+ individuals and I do not want my child to use pronouns to identify themselves or others. Will they be subjected to a Title IX violation?

A: Michigan school districts want all students to feel safe and protected. Any student and their family can talk with their school’s leaders to learn more about their policies and establish solutions that fit the family’s preferences.

Consider the definition of harassment, discrimination, assault, and bullying:

2024 Title IX Definition: Schools must address sex-based harassment if it is so “severe or pervasive” that it “denies or limits” a person’s ability to participate in a school program or activity.

How much bullying would a child be doing that it is considered so pervasive that it affects the participation or access of another student to programs and activities?

The State of Michigan reminds us that "bullying is more than disagreements, differences of opinion, or conflicts that occur between friends and classmates. Bullying is serious and is defined as repeated, unwanted, aggressive behavior with an observed or perceived power imbalance."

There have been 17 transgender people this year alone who lost their lives because of this rhetoric and insinuations that peg them as violent criminals. (Nex Benedict) (Pauly Likens) (Jazlynn Johnson)

Morally disagreeing with another's identity or way of dressing is anyone's right, and nobody disputes that. The same goes for having a difference of opinion rooted in religious beliefs. There's a common-sense difference between a Christian student asking for help to navigate concerns about bathrooms because of their religious beliefs and comments or actions that would be remotely perceived as harassment to a degree that limits another's ability to participate in a school program or activity. Title IX updates do not punish or retaliate against students or families who object to others’ identities and seek solutions to help them feel safe.

Q: Do the 2024 Title IX updates allow boys to play in girls’ and women’s sports in Michigan K-12 schools?

A: The Title IX changes do not address athletics. Separately, the Michigan High School Athletic Association (MHSAA) has outlined a policy on transgender athletes https://cdn.factcheck.org/UploadedFiles/TransgenderPolicy.pdf

Decisions about athletics are not within any local Board of Education's purview.

Q: If the 2024 Title IX updates are not about bathrooms or sports, then why are people saying it is?

A: The Heritage Foundation and Moms for Liberty launched extensive misinformation and disinformation campaigns about Title IX to support their goals to abolish the Department of Education and Title IX. Moms for Liberty is a national paid membership-based organization that relies on local chapters to speak about their concerns at the local level. Moms for Liberty has intentionally withheld the full picture of the Title IX implications that affect straight girls and women and their ability to avoid discrimination or to get help for harassment or assault. Instead, they are focusing on protecting:

• The freedom to bully LGBTQIA+ individuals with bullying so severe it prevents kids from being able to attend school
• The freedom to discriminate against LGBTQIA+ individuals and families
• Engagement for pro-privatization efforts in tandem with election season

Michigan's trans kids are still protected. Moms for Liberty isn't changing that (Detroit Free Press)

Here, we have the Title IX page on the Moms' website. In their Frequently Asked Questions section, they ask;

• Why did the [Trump-appointed] District Court find the Biden Administration's Title IX rewrite violated the rights of Moms for Liberty members?
• Answer: In its preliminary injunction opinion, the district court found the Title IX rewrite violates Moms for Liberty members’ children’s First Amendment rights because it is so vague and overbroad that no one knows how to comply with it.

Moms for Liberty was named an "extremist" group (NPR) and actively campaign with the authors of the 2020 Title IX restrictions who advocate for privatization models.

Q: Can Michigan schools and educators give students medications, like puberty blockers, without parental consent?

A: No. Schools cannot medicate students with puberty blockers or facilitate a transition. No school in America can send a child to a doctor to transition. Parents always preserve their rights to consent and many states restrict parents from taking these actions even with their consent.

Fact-checking DeSantis: Can trans kids go to Calif. and get care without parents?

PolitiFact | Children younger than 18 in California require parental consent to receive gender-affirming medical care. (Tampa Bay Times)

Q: Can Michigan schools and educators refer or transport students to healthcare clinics for services that help facilitate transitions?

A: NO. Please see above.

Q: Have you heard that transgender bathroom policies resulted in the assault of a student in Virginia?

A: This is misinformation. The 2020 Title IX rollbacks created this viral bathroom nightmare.

• The 2020 changes caused a Virginia school district to mishandle a sexual assault. Virginia's 2021 gubernatorial race was among the most highly publicized in the nation, and Governor Younkin's campaign leaned on many "parental rights" and anti-transgender talking points. Youngkin ran hundreds of TV ads pledging to make school curricula less “un-American” and to overhaul policies on transgender students and school bathrooms. The timing and politicization of the sexual assault, the campaign platform, and the district's response went viral and ignited panic over bathrooms.
• In May 2021, a boy assaulted a girl in a bathroom. The school was debating how to provide legal access to bathrooms in its school district (a Civil Rights issue). During this time, the boy put on a skirt, entered a girls' bathroom, and assaulted the student. Politicians and the media were quick to describe the boy as "gender fluid" and used the incident to fuel Youngkin's speeches and platform. However, the teen and the girl had had consensual sex in the school bathroom previously, a grand jury noted.
• The grand jury found that after the consensual encounter, the teens texted about meeting in the bathroom again, but the girl expressed reluctance via texts. When she met the boy in the bathroom this time, he sexually assaulted her (rape/date rape). The student wasn’t transgender but did wear a skirt that day. He was in a drama club and prone to dress for attention.
• During the lengthy investigation, the boy was allowed to enroll with a neighboring school that Fall where, in October 2021, he dragged a girl into a classroom, strangled, and assaulted her. (WTOP)
• "After the male student’s enrollment at [the new school], there were many warning signs that teachers and administrators should have flagged. For example, on September 9, 2021 in English class, the student grabbed a female’s shoulder “really hard” and asked her whether she ever posted nude photos online. The incident was reported as a possible Title IX violation. While the superintendent and chief of staff “expressed concern” after learning of the situation from multiple people, there was “no evidence of any discernible action" based on the 2020 Title IX definitions.
• The male student identified as male, used male pronouns and had not previously identified as LGBTQIA.
• A judge unsealed the case in 2023 and the victim's family filed a $30 million lawsuit because the district failed to properly investigate the assault.
• This was one of more than 12,000 incidents on Virginia’s K-12 campuses over five years, pointing to a significant problem. 
• Unfortunately, the damage was done after the initial mention of "bathroom assault," and this fueled Youngkin's victory and ignited "gay panic." The political firestorm in Virginia plays a role in Michigan's conversation because only the first part of the case is cited. Nobody adds all of the subsequent details:
• The immediate and inaccurate rush to brand the criminal as "gender fluid" or transgender during the height of political campaigns vilified LGBTQIA+ individuals nationwide. The loose references to gender fluidity implied that transgender (male to female) individuals are physically and sexually aggressive and pose risks to girls. Politicians convinced the public through ads that we have left girls or victims powerless.
• Factually, the Virginia case proves three things:
• The school did not establish a proper policy, lied, and tried to cover it up while simultaneously creating a policy amid thousands of school assault incidents. 
• The school ignored many red flags about this student.
• The Title IX coordinators had to navigate a 2,300-page Title IX change document, conduct cross-examination, and take many other cumbersome steps before taking action to help the victim. As noted, other incidents were reported, but the administration couldn't act based on the narrow 2020 definition of harassment.

Q: Are public schools at odds with parental rights?

A: No. Parents are invited to freely exercise their rights by choosing everything from the school their children attend to the materials they can or cannot obtain from libraries. They can also opt students out of particular lessons. Public schools are responsible for providing education to the entire public, which means that inside the school walls, Parental Rights also need to consider federal and state civil rights.

In 2022, Michigan passed legislation requiring schools to display Parental Rights. (Chalkbeat)

MCL 380.10: "It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children. The public schools of this state serve the needs of the pupils by cooperating with the pupil's parents and legal guardians to develop the pupil's intellectual capabilities and vocational skills in a safe and positive environment."

"While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school, or a dress code, these issues of public education are generally 'committed to the control of state and local authorities.'" - Blau v. Fort Thomas Public Schools

Q: Are we dismantling women’s sports and women’s rights?

A: First, Title IX does not currently include any guidance about athletics. We can find no studies on the impact, only partisan opinion pieces on either side of the aisle arguing on anecdotes or predictions. There are 520,000 NCAA athletes, and it’s estimated that there are 35-40 transgender athletes (male-to-female and female-to-male).

That is .0076% of the NCAA population.

Students are far more likely to experience school violence, harassment, bullying or assault.

This month, the outing of a transgender volleyball player at San Diego State University, who has been playing without issue for three years, has made headlines after political activist Riley Gaines filed a lawsuit – not when the player started college, but before the 2024 election. The lawsuit will take time to resolve.

Title IX remains the only law that grants women any equality in America and protection from the far more common traumas like the Larry Nassar case.

The law opened doors and removed barriers for girls and women, and while female athletes and their sports programs still have fewer teams, fewer scholarships, and lower budgets than their male counterparts, since Title IX's passage, female participation at the high school level has grown by 1057 percent at the high school level and 614 percent at the college level. (Billie Jean King)

A Vanderbilt University researcher acknowledges rampant sexual abuse among women and adds, “Female participation in college athletics has increased to nearly five times the pre-1972 participation rates since the introduction of Title IX. While that progress is admirable, the athletes of today-both male and female-deserve better. A decrease in the number of female coaches, high rates of sexual abuse of female athletes, and elimination of successful men's programs are some of the major negative unintended consequences of Title IX as it is currently implemented. It is in the best interest of all serious collegiate athletes-male and female-to update the system to ensure the integrity of college athletics and wellbeing of student athletes. This Note argues that the best way to fix Title IX is to alter its biggest weakness: the proportionality requirement. Specifically, this Note suggests a new solution: the FEMALE Act, which would (1) remove the top revenue-producing sport at each school from the proportionality calculation; (2) require schools to meet the proportionality requirement with coaches, not just athletes; and (3) add provisions that better protect athletes from sexual abuse.”

Q: Have any legal issues arisen in Michigan since the federal and state policies were implemented?

A: Attorney Matt DePerno, who is facing multiple personal lawsuits, filed a 2023 case after the Elliott Larsen Civil Rights amendment on behalf of students in Vicksburg. He withdrew his representation for the plaintiffs on October 4, 2024. In the initial filing, DePerno argued:

“Some Plaintiffs and other girls did not understand if the biological male was in the girls’ restroom and locker rooms in order to spy on them, take pictures, threaten them or harm them.” (MLive, August 2023)

Thrun Law represents several Michigan school districts and advises:

Schools undoubtedly will face questions from parents of students who have expressed discomfort with bathroom arrangements. We recommend reminding all students and parents that privacy in school private areas like bathrooms and locker rooms is paramount, regardless of gender identity. No individual should engage in conduct that violates another student’s privacy rights, including taking photos or videos or “peeping” on students. If any student engages in such misconduct, discipline is generally appropriate. Additionally, any student who is uncomfortable using a group bathroom should be provided access to alternate facilities.

Schools are often faced with a situation where the student and parent(s) do not agree on how to address the student’s transgender status. The Michigan State Board of Education has long taken the position that the best person to determine a student’s gender identity is the individual student. If you find that a parent does not agree with the student’s viewpoint, we recommend first discussing the issue with the family to determine if there is a potential adequate solution that works for the family. If those efforts are unsuccessful, consider contacting legal counsel. 

Other DePerno references:

• Former Michigan GOP attorney general nominee is charged in voting machine breach (NPR, August 1, 2023)
• Attorney Matt DePerno withdraws Michigan Supreme Court Bid (Detroit Free Press, August 24, 2024)
• Michigan Supreme Court candidate may face disbarment – after the election (Bridge Michigan, July 24, 2024)

Michigan law also requires that legal action be in good faith. If you sue someone or raise defenses against someone who has sued you without any factual or legal basis to do so or to spite that person, there will be financial remedies. If you are the party that wins the entire case and the court finds that the lawsuit or defense to that suit was frivolous, it must assess costs and attorney fees against the losing party and their attorney.

MCL - Section 600.2591 Frivolous civil action or defense to civil action; awarding costs and fees to prevailing party; definitions.

Sec. 2591.

(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.

(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.

(3) As used in this section:

(a) "Frivolous" means that at least 1 of the following conditions is met:

(i) The party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.

(ii) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true.

(iii) The party's legal position was devoid of arguable legal merit.

(b) "Prevailing party" means a party who wins on the entire record.

https://www.legislature.mi.gov/Laws/MCL...

https://www.tilchinhall.com/.../the-dangers-of-frivolity.../

Here is a list of proposed bills on the topic of transgender rights in Michigan.

https://translegislation.com/bills/2024/MI

For questions or to request a factual update to be reviewed by the editor, please email Michigan School Scoop.