More than 100 Pa. schools with kids of Moms for Liberty members will be exempt from new Title IX rules

New regulations from the Biden administration take effect Thursday barring discrimination based on gender identity as part of Title IX. But in Pennsylvania schools that enroll children of Moms for Liberty members, the government won’t be able to enforce the rules.

That’s based on a court case brought by the self-described parental rights group, along with Kansas, Alaska, Utah, and Wyoming, and two other groups. A federal judge ruled in their favor in July, ordering that the federal government couldn’t enforce the new protections for LGBTQ students in the four states.

But the judge also barred enforcement of the rules in schools across the country attended by children of Moms for Liberty members. Since then, the group has been urging parents to sign up on its website — resulting in a growing list of schools that have been entered into the court case.

Advocates for LGBTQ children say the impact of the Moms for Liberty list may be limited — noting that Pennsylvania rules already prohibit discrimination based on gender identity. Here’s what to know about the case and what it means for schools.

The Biden administration’s rules expand the protections offered by Title IX — the 1972 civil rights law that prohibited discrimination based on sex in schools and education programs receiving federal funding. The updated regulations specify that discrimination based on sexual orientation or gender identity is a form of sex-based discrimination.

That’s not the only change; the new rules, which apply to both K-12 and higher education, also expand protections for pregnant and breastfeeding students. They also require schools to investigate verbal or informal complaints of discrimination; previously, a complaint had to be written to trigger a required investigation.

The rules “build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights,” U.S. Secretary of Education Miguel Cardona said in an April statement.

In a lawsuit filed in May in U.S. District Court in Kansas, Moms for Liberty, along with the other plaintiffs, contended that the new rules would “institutionalize the left-wing fad of transgender ideology in our K-12 system and tie school funding to it.” It argued that boys and girls would “sacrifice their privacy” in restrooms and locker rooms, and that girls would be forced to compete with “biological males.” (The Biden administration has said the rules don’t apply to athletics.)

The lawsuit included several unidentified students, including a 13-year-old girl in Oklahoma, “who has suffered the embarrassment and indignity of encountering males who identify as females in her school restroom.”

The new rules threaten her and other students’ right to free speech, the lawsuit said, because “she wishes to stay true to her religious beliefs and avoid using inaccurate pronouns that contradict someone’s sex.”

U.S. District Judge John W. Broomes granted the plaintiffs’ request for a preliminary injunction earlier this month, finding that the rules could chill student speech. Broomes also said the rules elevate “gender identity discrimination over the traditional view of biological sex discrimination that Title IX was intended to address.”

The Biden administration appealed the ruling in the case, which is among a number of legal challenges that have been brought by Republican-led states.

Broomes ordered that the U.S. Department of Education could not enforce the new rules in any school attended by a current “or prospective” member of Moms for Liberty, which has chapters across the nation.

To substantiate which schools are included, the judge allowed Moms for Liberty to submit a list to the court. The group, which had not previously collected information on where members’ children attended school, asked members to update their profiles on its website to include that information.

It’s also been soliciting new members — noting that membership is free “and ensures your child’s school is included in this exemption.”

» READ MORE: Which school board candidates are backed by Moms for Liberty? Around Philly, it’s hard to tell.

“American parents don’t want this,” Tiffany Justice, cofounder of Moms for Liberty, said in an interview. “They don’t want boys on their girls’ sports teams. They do not want boys in girls’ locker rooms.”

More than 100 Pennsylvania schools are on a list submitted to the court July 26, including many in the Philadelphia region. Among them: schools in the Centennial, Garnet Valley, Haverford Township, Kennett Consolidated, Oxford Area, Penn-Delco, Pennridge, Souderton Area, Spring Ford, Tredyffrin/Easttown, Unionville Chadds Ford, Upper Darby, West Chester Area, and Wissahickon districts. (A handful of South Jersey districts also appear on the list.)

Noting that the list covers individual schools, not entire districts, “this creates a myriad of legal issues to work through in determining how districts will move forward if schools in their district are named on the list,” lawyers with the Fox Rothschild firm, which represents a number of area districts, wrote in a post.

The lawyers added that “it is possible that the 2024 Title IX regs will eventually be enjoined throughout the country or at your school district. Stay tuned!”

Several school districts contacted by this week by The Inquirer did not respond to requests for comment; one school leader said he was waiting for legal advice.

The Moms for Liberty case doesn’t prevent schools from supporting transgender students — such as allowing them to use restrooms aligned with their gender identities, said Kristina Moon, senior attorney with the Education Law Center, which advocates on behalf of LGBTQ students. Several area districts that last year passed policies limiting restrooms or sports teams on the basis of “biological sex” have since repealed them.

And even in schools on the Moms for Liberty list, Moon said, students still have a right to file complaints through the Pennsylvania Human Relations Commission. Pennsylvania regulations define sex discrimination as including “pregnancy, sex assigned at birth, gender, including a person’s gender identity or gender expression, affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality, differences of sex development, variations of sex characteristics or other intersex characteristics.”

The commission said earlier this week that it would “continue to accept, investigate, and prosecute complaints of discrimination filed by students on the basis of sex in accordance with state law and regulation.”

While LGBTQ students in Pennsylvania still have recourse, Moon said — also noting a 2018 federal court decision upholding a Boyertown Area School District policy that allowed transgender students to use restrooms and locker rooms corresponding to their gender identities — “we’re really concerned that this creates a lot of confusion, and room for misunderstanding, from school administrators and community members about schools’ continuing obligation to prevent and to investigate sex-based discrimination.”

She said she hoped the Pennsylvania Department of Education would issue clarification to schools.