New directives on transgender students issued by state and federal authorities

On Board Online • February 24, 2025

By Eric D. Randall
Editor-in-Chief

Recent executive orders from the new administration in Washington D.C. "do not affect the rights of transgender students and individuals in New York's public schools," according to a Feb. 13 memo issued jointly by the state Office of the Attorney General (OAG) and the State Education Department (SED).

A Feb. 5 executive order entitled "Keeping Men Out Of Women's Sports," states that "it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy." A prior executive order, dated Jan. 29, excluded "gender identity" from the definition of "sex" under Title IX which prohibits discrimination on the basis of sex.

In contrast, New York "continues to offer 'robust' protections for transgender students, including the right to use facilities (such as restrooms and locker rooms) and to participate on athletic teams that align with their gender identity," according to the joint OAG and SED memo. "Unlawful discrimination against transgender students includes asking questions about their gender identity and assigned sex at birth and refusing to use their requested name or pronouns."

While acknowledging that "presidential threats to withhold funding are intimidating," the OAG and SED stated that they are also beyond presidential authority as they "arrogate . the power of Congress" to the president "or otherwise circumvent appropriate legal process."

The OAG and SED also expressed their commitment to uphold New York's 2019 Gender Expression Non-Discrimination Act (GENDA), which applies to public schools and explicitly includes gender identity or expression as categories protected against discrimination.

According to OAG and SED, "School districts must continue to follow state law."

Read the state memo at bit.ly/410Sjhr . Read the text of the Feb 5 executive order at bit.ly/3CRXA2U .

Another resource is a state document called "Creating a Safe, Supportive, and Affirming School Environment for Transgender and Gender Expansive Students: 2023 Legal Update and Best Practices" at bit.ly/3qYc23t .