Fallacies about Title IX

• Michigan schools and their boards are loosening protections for students, particularly girls in bathrooms, by implementing federal Title IX policy updates (which Moms for Liberty is working to delay/prevent).
• The topic of girls/boys and bathrooms is being decided now (fall 2024) in Michigan schools.
• Title IX changes are creating new opportunities in Michigan for boys to play girls sports.

Truths:

• Michigan school boards regularly update their policies to comply with state and federal laws with guidance from legal counsel and public discussion. The Title IX topic involves a mix of recent developments at the state and federal levels. There is a lot to unpack, and because of all of the considerations below, people are conflating separate topics to arrive at these fallacies. Right now, school boards are diligently navigating how to meet all laws while increasing protections for students and victims.

• First, we need to define the difference and relationship between Civil Rights and Title IX matters: 
• Civil Rights laws define discrimination and protected groups. There are Civil Rights laws at the federal and state levels. For example, not discriminating against hiring a pregnant woman or denying someone the right to rent an apartment because of their age or national origin. Or not letting an LGBTQIA student enroll in school or a pregnant student into the lunch room. In education, this could also be Brown v. Board. These laws can be amended to add more specificity about the named group and what constitutes discrimination. (Michigan Constitution)
• In Michigan, our Civil Rights law is called The Elliott-Larsen Civil Rights Act. It first passed in 1976 and has had various amendments.
• Title IX focuses more specifically on what to do when a protected group experiences sexual harassment in a school. The regulations designate the individuals responsible for investigating the school incidents and the necessary processes for investigating and resolving them. Title IX was initiated during the Nixon era to ensure that women had equal access to universities and protection from sexual harassment and other violations in college athletics. Title IX also covers K-12 schools that are federally funded, which can include private religious schools if they have any federal funding. (Justice.gov) 
• Consider skimming this helpful comparison chart if you simply want to see the differences between 2020 and 2024 Title IX regulations (National Women's Law Center)

How Any Changes Affect School Boards:

• Laws change often at all levels of government, and new presidential administrations make small changes to Civil Rights laws and Title IX regulations. School boards, in partnership with their legal counsel, ensure their school policies are updated with all federal, state, and local laws. While this is a regular practice throughout the year, we have just begun the 2024/2025 school year. There were some developments over the summer that we had a heads-up about earlier this calendar year.
• As of August 1, 2024, school boards are/were responsible for updating their Title IX policies to comply with federal changes. The changes focus on how they investigate reports/incidents of sexual harassment and discrimination at school. Please review this chart to compare the 2020 policies and 2024 policies. Michigan school districts are at various stages of revising how they handle sexual harassment. 

• Now remember, when a school board makes "updates," they don't take this process lightly. You may notice school board meeting agendas that reference a "first reading" or a "second reading." Any updates must include a thorough review with legal counsel to ensure the policies consider:
• Civil Rights Acts at the federal and state level
• Title IX at the federal and state level
• Michigan's constitution
• District considerations and Board dialogue
• Public comment

What To Know About Recent Changes to Civil Rights and Title IX:

Civil Rights:

• The state's Elliott-Larsen Civil Rights Act, first passed in 1976 to prohibit discrimination, was expanded in 2023 to include protections for LGBTQIA+ individuals (sexual identity and gender). 
• 1976: Prohibits discrimination on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” in employment, housing, education, and access to public accommodations.
• 2023: Adds protections for LGBTQ+ Michiganders, pregnant and nursing women, and natural hairstyles.
• Why? Consider the 1976 definition. It says not to discriminate against women, but what about a teacher interviewing for a job who is asking for a place to be able to pump breast milk? She cannot be denied a job or a place to pump simply because she is a nursing woman. Or, a Black woman applying for a job but is told that she must wear her hair in braids instead of in a natural style or else she won't be a fit. Or, an LGBTQIA+ student cannot be denied acceptance into a neighboring Schools of Choice program because they are bisexual. Title IX examples apply to K-12 and college students.

• Regarding bathrooms, since 2023, it is illegal in Michigan to decline access to education and public accommodations for any of the groups covered by The Elliott-Larsen Civil Rights Act. There have already *been* protections for LGBTQIA+ minors and adults in our state.

• Any public/federally funded space needed to take steps in 2023 to ensure that they have provided access. The how can be determined by each space - with more policies. Most school districts established bathroom policies over a year ago, allowing transgender students access to single-use faculty or office bathrooms, or other accommodations. This matter should be long resolved, and there have been no reported incidents or crimes since this law was passed in Michigan. However, the bathroom policy is the responsibility of each district to create.

• Federal Title IX updates do not change whether or not Michigan schools need to follow that law because Civil Rights protect our residents. This may not be the case in other states, where Title IX creates first-time non-discrimination protections based on its definition of protected groups (e.g. harassment based on sexual/gender identity vs. sex) that would require investigations. At the federal level, Title IX now matches the definitions Michigan has been using across all Title IX categories since 2023.

What Title IX Covers and Why It Changes:

• It's common for presidential administrations to make updates to Title IX. View the 2020 and 2024 differences here: (National Women's Law Center)

• Title IX areas covered for K-12 and higher education students include:
• Sex-based harassment
• The duty to report sex-based harassment
• Responding to sex-based harassment
• Investigating sex-based harassment
• Preventing sex-based harassment
• Anti LGBTQIA+ discrimination
• Discrimination against pregnant and parenting students

• The word "discrimination" is new for some states, unlike Michigan, that do not already have Civil Rights protections for LGBTQIA+, pregnant, nursing or parenting individuals.

• In 2020, the Trump Administration implemented severe restrictions to Title IX, which limited many of the above areas to favor those accused of sexual assault and harassment, making it extremely difficult for victims to come forward or receive help from their schools. You can view a helpful comparison of Title IX under the previous administration and the revisions the current administration introduced to protect victims (National Women's Law Center)
• Glancing at our Truths timeline will provide helpful context about why this administration would want to roll these protections back because the 2020 changes might not sound very practical. Under the 2020 regulations, incidents of harassment reported in a K-12 school required months-long investigations that favored the accuser. They subjected victims to cross-examinations and the burden to meet an extremely narrow definition of harassment equating to not having "access" to school. These changes were buried in a 2,300-page document.

Title IX Rollbacks Create a Viral Bathroom Nightmare:

• The 2020 changes also 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 notes 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.
• The school's spokesperson was used as a scapegoat and was placed on administrative leave for six months over the mishandling. The superintendent was fired.
• 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:
• 1) 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. 
• 2) The school ignored many red flags about this student.
• 3) 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.

• The resulting narratives and fearmongering have contributed to elevated harassment, assaults, and even 17 violent killings of transgender individuals to date in 2024. (Nex Benedict) (Pauly Likens) (Jazlynn Johnson)
• "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. Even the tone of discussions around current policies in the news could influence psychological stress experienced by people who are transgender." (Michigan Medicine)
• "It’s become a common refrain in recent months: Allowing transgender people to use the restroom that aligns with their gender identity will end up letting male sexual predators into women’s bathrooms. Supporters of controversial bills seeking to limit transgender people’s use of public restrooms have repeatedly made that argument. There is little hard evidence to back up this assertion, but LGBT advocates and other opponents of the bills have had to develop a number of counter-arguments to refute it." (Time)

Title IX & Today's Implications:

• The Biden Administration restored protections for victims like the Virginia student with Title IX updates, which took effect August 1, 2024. (National Women's Law Center)
• These updates would have better protected the Virginia victim and given more protections or recourse for students like Nex Benedict. However, as you can see, to stifle protections for LGBTQIA+ students means stifling protections for all students.

• Tapping into the emotions from Virginia's case, the membership-based group, Moms for Liberty, which campaigned with Governor Youngkin and is funded by groups affiliated with the 2020 Title IX rollbacks, is using the 2024 Title IX changes to rally a new wave of panic, leading people to think that the 2024 regulations will open the floodgates to more Virginias.
• "It's really easy to motivate people to go out and vote because they're angry." (USA Today)
• Moms for Liberty partnered with The Heritage Foundation on Project 2025, which aims to abolish the Department of Education and public schools. They advocate for a privatized education model that asks to use federal funding for private religious schools. Only some private religious schools use federal funding (in some of the states where they have filed a subsequent lawsuit). If those schools receive funding, then they must offer Civil Rights protections and follow Title IX.
• Moms for Liberty policies outline a goal to abolish public education and teacher's unions. The Council on National Policy notes they aim to replace public education with free market, for-profit schools, religious schools, and homeschools.
• Each state and school board has different Civil Rights protections, which may differ from Michigan's, so how each state reacts to Title IX will differ. If that state's Civil Rights laws differ, then it could be the case that Title IX changes introduce bathroom access or policies for the first time.

• The July 2024 Moms for Liberty lawsuit in Kentucky seeks to exclude any current or former member of Moms for Liberty and Young America's Foundation from "the Title IX updates." If you research how Moms for Liberty positions this, they use this broad phrase because they insinuate that it implies students across America are now at risk like the Virginia girl. The matter is currently working its way through the nation's courts. (NBC).
• While the Moms give an example of why they don't want the regulations passed, "This means anyone can claim harassment if another person isn't using their pronouns," They do not reference any of the far more likely scenarios, such as someone cat-calling or touching a girl's chest, or making fun of someone's size, which cannot be considered Title IX harassment - unless she opts to stop attending school because of it, participates in cross-examination, and a review sides with her months later.
• Moms for Liberty is hiding the broader implications from its members, who may not realize that this injunction is far broader than the pronoun panic and directly affects their ability to protect their daughters like in Virginia (or their boys).

• During this injunction and while the matter makes its way through the courts, Moms for Liberty is using this moment as an opportunity to hold membership drives and add the names of their students' schools to lists of districts they are affiliated with so that those districts do not update their Title IX policies. Members encourage community members to speak to their school boards and out against Title IX, including in Michigan.
• Here is a legal explanation from Illinois, which, like Michigan, is not listed in the Moms for Liberty suit, but which has Moms for Liberty members adding their schools to a list of Moms for Liberty-affiliated schools.

• Either now or pending the outcome of this Moms for Liberty suit, Michigan schools will be responsible for updating their Title IX policies, primarily defining the investigation process (National Women's Law Center). Schools need to ensure they are ready to follow through on the increased Title IX protections that apply to all students by responding immediately when there is an incident and following the grievance process. 

Why Title IX is Making News:

• For obvious reasons, the topic brings Virginia's unique case back into the spotlight. Moms for Liberty are positioning this as a resurgence issue of bathrooms and parental rights during an election year.
• Federal changes affect every state differently. If someone reads that a lawsuit in Kentucky is focused on bathrooms, they may think it applies in Michigan. This overview took us days and hours to research, and most articles or school board speeches do not invest this amount of time to sort through the complexities. Misinformation more easily fills the gaps.

Title IX and Boys/Girls Sports in Michigan:

• Public attention has also turned to the issue of allowing transgender students to play on the sports team of their same gender. While protections for transgender student-athletes fall under the Title IX umbrella, the U.S. Department of Education said it will release a separate regulation on the topic and it is not part of any current updates. (WILX)
• Regardless, "The MHSAA does not prohibit girls from participating on boys teams. Therefore, the MHSAA will not be involved in matters involving trans male (female to male) student-athletes. When questions arise involving trans female (male to female) student-athletes, the MHSAA executive director will determine eligibility for MHSAA tournaments on a case-by-case basis after being provided at least 30 days before the opt-out due date for that tournament, by the administration of the school for which the student seeks to participate, documentation that answers the following questions. (MHSAA)
• Under the Title IX proposal, schools could limit transgender athlete participation but could not categorically ban them from participating in sports because they are transgender. (Bridge)
• This statement seems to show that MHSAA has already established a policy for the state.

The Bottom Line:

• No matter how the federal Title IX regulations settle, schools are responsible for following The Elliott-Larsen Civil Rights Act for bathroom access. Exactly how they have been following this law since early 2023 is a question anyone can ask their local school board. Most provide single-use options.
• Separately, since the Moms for Liberty lawsuit doesn't touch Michigan, school boards can update their Title IX definitions of harassment and how they investigate. Delays in Michigan are specifically due to some school board speakers threatening their boards not to take action because they are Moms for Liberty members (legal explanation), the public's confusion, and the outcry caused by the Moms for Liberty membership drive. (National Women's Law Center)
• If this is still confusing, you're not alone. The way activists are speaking about the issue intentionally creates anti-LGBTQIA panic. This "panic" has contributed to harassment and deaths in Michigan, which led the state to categorize the murder of LGBTQIA+ people as a hate crime and eliminate the "gay panic" defense in criminal trials. (ACLU) (NBC)
• This is an evolution of the ongoing attacks on LGBTQIA+ people out of panic (morals vs. data).
• It's also an opportunity to point to "bad" public education or school boards not catering to Moms for Liberty whims from other states to build support for a privatized education model, discrimination, and vouchers. 

How to Help:

Educate others:

• Use this "case study" as helpful perspective. Remember that a mix of political rhetoric and media headlines can create narratives. The news cycle moves fast. After citing the Virginia incident, the public had long moved on and never addressed new facts that emerged. What else are we reacting to without pausing to confirm facts?
• Ensure you look at the big and small picture for all topics. Are facts easily Googleable for this and any other school board public comment topics? What organization(s) is the messenger representing, and how do those organizations relate to public education?
• If you're a leader, determine what's needed to clear confusion. More proactive communication is often the best solution. People never paid attention to Board policies before, but they are now. Involve your communications leader to explain updates to the public, or have responses ready. This alleviates the need for Board members to try to convey all of this during one meeting.
• Share a more precise overview, offering a comparison chart of 2020 vs. 2024 topics, or hosting a community info session that eases confusion with facts.
• Remember that most people are not immersed in the laws at all levels and how changes translate, affect them, or could affect them. Break down the facts into bite-sized nuggets, keeping in mind they could be interested because of sensational headlines.
• Share these facts wherever you see misinformation and disinformation posted. Respectfully and calmly relay the facts. Reviewing the Truth timeline shows that some people who share fallacies don't even realize they are part of a fearmongering campaign that depends on them to support privatization.

Ask questions if you're concerned:

• Write down your questions and send them to your school board or the Title IX coordinator. For example:
• What is our current Title IX policy and the proposed changes? How will this district protect students when an incident is reported?
• What is our bathroom policy? How has this been going since it was implemented?
• Are the community's public comments citing the Virginia case or alluding to this case as if it is the norm to expect? Are they using terms like "gender fluid?"
• What data are you allowed to share about general incidents in the schools, such as where most episodes of harassment or assault are taking place? 
• What is our grievance process? 
• How do students feel about safety in school? Is there a culture and climate survey? How have we responded to student incidents and complaints, etc?

If you believe a factual edit is required, please email us.