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By Jennifer Rainville, Education Policy Attorney at SC Appleseed
A new school year has started and there are some new laws and policies that are affecting some students more than others. There are a few changes that will directly be affecting students who identify as LGBTQ+. In this summary, our Education Policy Attorney Jennifer Rainville goes through three key things happening that parents and students who identify as LGBTQ+ should know about. If you have questions on the new laws and policies discussed in this blog, you can email Jennifer at [email protected].
To talk about the new changes happening this school year, we must first talk about Title IX. Title IX is a federal law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. The Office of Civil Rights (OCR) is responsible for enforcing Title IX. This means that you can make a complaint to OCR if you feel like your rights under Title IX have been violated. You can learn more here about how to file a complaint.
New National Regulations
On April 19, 2024, the U.S Department of Education released new regulations that widened the scope of protections given to students. These included provisions designed to protect LGBTQ+ students. These rules were supposed to take effect on August 1, 2024.
- You can read more about the new Title IX guidance here: https://www2.ed.gov/about/offices/list/ocr/docs/t9-final-rule-factsheet.pdf
- and here: https://www2.ed.gov/about/offices/list/ocr/docs/t9-final-rule-summary.pdf
- You can access the full regulations here (they are over 1,500 pages long): https://www2.ed.gov/about/offices/list/ocr/docs/t9-unofficial-final-rule-2024.pdf
South Carolina’s Response to the Protections and Where it Stands Today
On April 23, 2024, the SC state superintendent of Education issued a memo directing school districts not to comply with the new regulations. You can read her memo here: https://ed.sc.gov/newsroom/school-district-memoranda-archive/new-title-ix-regulations/new-title-ix-regulations-memo/
South Carolina filed a lawsuit against these regulations and as of July 31, 2024, a federal court judge said that South Carolina and several other states do not have to follow the new regulations and instead must continue to follow the old regulations. You may review those regulations here: https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal
This means that the new protections provided in the regulation do not apply at this time. The federal court cases are still winding through the courts and there is not a final decision on them. School districts still must follow the old Title IX regulations. It is likely that this case will not be resolved until it reaches the U.S. Supreme Court, which can take a while.
New Law Around Gender Identity Healthcare in SC
The second issue that is impacting our LGBTQ youth in schools is a new law on Gender Reassignment Procedures. This law is mostly targeted at preventing trans youth from getting healthcare. However, there is a provision that added S.C. Code § 59-32-36 that requires all school employees to inform the school principal, vice principal, or counselor if a student tells them that they identify as a gender inconsistent with what sex is listed on a student’s birth certificate, or if a student wants to change what pronouns they want to be called by, or change what name they go by if that is inconsistent with the sex listed on a student’s birth certificate.
This means that School administration is required under the law to send a written notice to parents informing them of the request made by the student.
You can read more about the guidance issued to school districts along with the sample letters that school districts are provided here: https://www.ed.sc.gov/newsroom/school-district-memoranda-archive/guidance-on-h-4624-gender-reassignment-procedures/guidance-on-h-4624-gender-reassignment-procedures-memo/
The Final Thing That is Going to Impact our
LGBTQ+ Students is a New Budget Proviso.
What are budget provisos? Budget provisos are directives or instructions put into SC’s state budget that tell how funds received from the state are spent. Technically budget provisos are only good for that one year. However, many times provisos can be reintroduced into the following year’s budget. Sometimes the legislature will put things into a proviso that they were unable to pass as stand-alone legislation. This can be a problem because the language in these provisos are not subjected to the same scrutiny and public feedback and debate that happens in the legislative process.
The following is a summary of the new budget proviso:
Budget Proviso 1.120 Student Physical Privacy – requires that all SC schools must designate multi-occupancy restrooms and changing facilities for use by only members of one sex and prohibits students of the opposite sex from using them. The proviso defines sex as a “person’s biological sex, either male or female as objectively determined by anatomy and genetics existing at the time of birth.” School districts have been advised by the SC Department of Education that typically this information will come from a student’s birth certificate. If a school doesn’t follow this policy, then they will subject to losing part of their state funding. This means that this proviso will be strictly adhered to by districts.
It is important to remember that this proviso does not prohibit school districts from providing reasonable accommodations to a student whose parent(s) have requested that a student uses a single-occupancy staff restroom.
You can read the guidance that was given to school districts by the department of education here and here.
If a bill is not passed on this issue in 2025, it is likely that it will continue to be a budget proviso.
These laws, lawsuits, and provisos can make our LGBTQ+ children feel unwelcome in our schools or not supported by the adults who are supposed to educate and care about them. It’s important that all children feel supported and welcome in schools. Being informed on your rights and exercising your rights and the rights of your child is important in helping expand the rights of children in our schools. The best way to fight back is to educate yourself and get engaged. Go to school board meetings and share public comments. Call and write to your legislators to let them know how these laws, lawsuits, and provisos are impacting your children and children that you care about.
If you want to learn more about how to get engaged and advocate, please feel free to reach out to me at [email protected].
For more on student rights in South Carolina, visit our Parent Guide for K-12 Students. Available in English and Spanish.
