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Education Dept Proposes ‘Nonbinary’ Category for Civil Rights Survey

Change is the Biden administration's latest move to extend Title IX protections to LGBT students

A transgender bathroom sign / AP
• November 19, 2021 1:50 pm

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The Department of Education could soon let schools list students as "nonbinary" in a federal survey of civil rights violations in K-12 schools.

The department's Office for Civil Rights on Thursday announced the proposed addition as part of its biennial Civil Rights Data Collection Information Collection Request for the 2021-2022 school year. The department's survey tracks discrimination and civil rights law violations against women and minorities in public schools. If enacted, this change would let schools list students as "nonbinary"—identifying as neither male nor female—to describe students' sexual identity.

The change is the Biden administration's latest move to extend Title IX protections to LGBT students. President Joe Biden in January signed an executive order banning discrimination based on "gender identity." A subsequent executive order on sex and gender discrimination urged the Education Department to conduct a complete review of Title IX policies, which ban discrimination based on sex in federally funded institutions, like schools. The department in June declared that transgender students were protected under Title IX.

Including "nonbinary" as a category for sex helps the civil rights office "provide a greater understanding of the experiences of nonbinary students" and "enforce Title IX's prohibition on discrimination on the basis of sex, which includes discrimination based on sexual orientation and gender identity," the department said in a press release.

Only schools that already track "nonbinary" students will be able to use the new classification. This year's proposed survey also seeks to collect information on remote learning, student behavior, and certifications for preschool teachers.

This is the first time the Education Department administered its civil rights survey two years in a row. The department says it added the additional survey to "identify and address inequities in educational opportunities" during the coronavirus pandemic. Preliminary data show that test scores have fallen, especially for black and Latino students.

Creating spaces for transgender students on campus at times conflicts with women's rights. The Biden administration in February withdrew its support for female high school athletes who sued to block biological males from competing against them in statewide contests.

Candice Jackson, a counsel in the Office for Civil Rights during the Trump administration, said the Office for Civil Rights is crushing the "integrity" of the data, which have historically been used to track discrimination toward women and minority communities.

"Apparently female students have achieved equality & overcome discrimination so we no longer need to collect data on sex," Jackson tweeted Thursday.

"Nonbinary" people make up roughly 0.3 percent of the United States population, according to a Williams Institute survey released this summer.