In its recent Title IX guidance, the U.S. Department of Education’s Office for Civil Rights redefines the 1972 law to ban discrimination on the basis of “gender identity” in federally funded education programs. In doing so, it showed willful disregard for scientific research on pediatric gender transition and for the findings of the Cass Review, a 388-page report and the most comprehensive to date on youth gender medicine.
OCR also ignored legal precedent. It said that its Title IX rule was a response to Bostock v. Clayton County, a 2020 Supreme Court decision that involved employment discrimination under Title VII of the Civil Rights Act. OCR thus acted without regard for the vast differences between employment (which involves adults) and education (which involves primarily children). And it disregarded entirely the Bostock Court’s explicit statement that it was “proceed[ing] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female” and consequently that its ruling does “not purport to address bathrooms, locker rooms, or anything else of the kind.”
The Republican response has been swift. Several red states have publicly condemned the update, and more than 20 have filed lawsuits. Much of the criticism has rightly focused on how creating “gender identity” rules will undermine women’s safety and opportunities by eliminating single-sex spaces and forcing the integration of male athletes into female sports.
The new rule effectively forces schools to facilitate so-called social transitions—recognizing trans-identifying students by their chosen “gender”—regardless of students’ age, familial circumstances, or medical and mental-health background. Schools won’t need to get parental consent; in fact, the rule effectively compels them to secure students’ consent before disclosing information about their social transition to their parents. It does so by recognizing students’ right to privacy from not just their school, but their own parents.
These new changes bring the Department of Education into conflict with the findings and recommendations of the recently published Cass Review. Immediately following the Review’s publication, Kamran Abbasi, editor-in-chief of the British Medical Journal, acknowledged that the evidence base for gender medicine—“from social transition to hormone treatment”—is “threadbare.” He called the report “an opportunity to pause, recalibrate, and place evidence informed care at the heart of gender medicine.”
The Biden administration has declined that opportunity. Its new Title IX rules implicitly reject the report’s findings and further illustrate Democrats’ indifference to the rising chorus of international skepticism about pediatric gender medicine and early social transition.
Advocates of social transition make two arguments for the practice. First, they insist that social transition improves mental health in “trans kids” and that failing to “affirm” a child’s “gender identity” can be psychologically damaging. Second, and somewhat in tension with the first claim, proponents argue that using students’ preferred names and pronouns, and granting them access to their preferred sex-specific facilities and activities, is no big deal. It’s not a psychological intervention at all, they claim, but merely a show of “respect” and “inclusion.”
Like physical medicine, psychological interventions can be beneficial or harmful. Iatrogenesis—treatment-induced illness—exists in physical and mental-health care alike. For this reason, any intervention requires careful diagnosis, weighing of costs and benefits, consideration of alternatives, and informed consent, which, in the case of minors, comes from those legally responsible for their wellbeing.
In her report, Cass writes that social transition “in an NHS setting” is “an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning and longer-term outcomes.” Cass and her team recommend that, for children, mental-health professionals advise parents “on the risks and benefits of social transition as a planned intervention, referencing best available evidence.” (Keep in mind that Cass’s recommendation assumes mental-health professionals will not automatically “affirm” a child’s feelings about gender.)
While Cass claims that social transition “is within the agency of an adolescent to do for themselves,” this needs to be clarified. A student may request new pronouns, wear clothing typical of the opposite sex, or want to use the other sex’s bathrooms, but a trans-identifying child has not socially transitioned unless adults in positions of authority treat the child as though he were what he claims to be. For very young children who don’t understand what pronouns are or how gender-related behaviors like dress and haircuts relate to one’s status as boy or girl, the “request” for social transition is inferred by adults from the child’s behavioral cues. In other words, by definition, social transition is something done to kids—not something they do to themselves.
If, as established, social transition is an active psychological intervention, the next question is: Does it help? The Biden DOE, which in 2021 encouraged schools to “use the name a student goes by, which may be different from their legal name, and pronouns that reflect a student’s gender identity,” thinks so. The department’s position mirrors that of the World Professional Association for Transgender Health, which, in its Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, says, “Research indicates social transition and congruent gender expression have a significant beneficial effect on the mental health of [trans-identifying] people.”
This isn’t true, according to the Cass report. Cass and her team commissioned seven systematic reviews of evidence and medical guideline quality from experts at the University of York, one of which dealt specifically with the question of social transition. The findings of that review, Cass writes, support “none of the WPATH [SOC] 8 statements in favour of social transition in childhood.”
Cass also notes that “social transition in childhood may change the trajectory of gender identity development for children with early gender incongruence.” In other words, if all adults in positions of authority in a boy’s life consistently treat him as if he is a girl, he will be more likely to believe that he really is a girl. While data on the relationship between social transition and gender-identity outcomes is limited, the possibility that social transition solidifies a cross-sex identity is supported by desistance literature. A 2018 paper by University of Toronto psychologist Kenneth J. Zucker suggests that 67 percent of children who meet the diagnostic threshold of gender dysphoria outgrow those feelings by adulthood, typically during puberty. Of those below the diagnostic threshold, 93 percent desisted.
Crucially, the kids in those studies had not been socially transitioned in the way gender transition advocates now recommend. Compare these high rates of desistence to those from a 2022 study of a group of socially transitioned children, which found that 97.5 percent had not come to terms with their sex at the end of a five-year follow-up period. Though this study did not follow the kids all the way through adolescence, it suggests that social transition can lock in a child’s cross-gender beliefs and feelings that otherwise are likely to remit. Most of the children in this study were receiving medical interventions, including puberty blockers, by its end.
Cass and her team thus recommend caution. They instruct parents to socially transition a young child, if at all, only after consulting a clinician, and they counsel clinicians to prefer partial social transition (e.g., letting the child wear cross-sex clothes while maintaining his name and pronouns) to full social transition. For adolescents, they argue that “exploration” of identity “is a normal process” and “rigid binary gender stereotypes can be unhelpful.” (Of course, trans identities often rely on such stereotypes.)
While gender ideology critics may find it disappointing that Cass allows for social transition in some cases, it’s important to remember that her approach is pragmatic. She acknowledges the reality that parents, teachers, and clinicians only have so much control over a teen’s life. Whatever parents do, they should never make it harder for their kids to “return” to their sex (i.e., desist) after having declared themselves trans. The important thing is “keeping options open.”
Finally, and perhaps most importantly, Cass emphasizes that there is no way of knowing which gender non-conforming or trans-identified kids, if any, will experience a lifetime of suffering if they are denied social or medical interventions. By contrast, getting it wrong means severe and potentially permanent iatrogenic harm. Clinicians have no diagnostic tool that can distinguish a child or adolescent who is destined to endure a lifetime of agony from one going through a phase. Normal distress over puberty, inability to accept oneself as gay, ongoing mental health challenges, and (in young children) simple confusion can all manifest symptoms consistent with the current definition of “gender dysphoria.” For this reason, Cass has warned of “diagnostic overshadowing.”
But even if a diagnostic test for “true trans” existed, there is no good evidence that the long-term benefits of early intervention outweigh the risks. And even if they did, it is doubtful that a young teen could understand the tradeoffs and give informed consent.
It is a mark of arrogance that the Office of Civil Rights took none of these facts—many well-known prior to the publication of Cass’s final report—into account when formulating its new Title IX rules. The agency couches its rules in absolutist “rights talk” and imposes highly inflexible requirements on schools.
The new regulations will force schools to accommodate a student who requests social transition, regardless of the student’s age, level of cognitive and emotional maturity, family circumstances, or mental-health challenges, and with or without a mental-health professional’s diagnosis or input from parents. Notably, the rules favorably cite two policy documents—an advisory from the California DOE and an administrative regulation from Nevada’s Washoe County School District—that endorse blanket social transition policies at school without requiring parental notification.
As one of us (Sapir) has pointed out in the past, legal rules like the new Title IX regulation generate considerable legal uncertainty for school districts. In their desire to avoid expensive and embarrassing civil rights lawsuits and OCR investigations, and on the advice of their risk-averse lawyers, school officials and boards find it in their interest to defer to the very advocacy organizations that, either on their own or through allies in their network, can initiate legal proceedings against the school. A self-interested administrator will thus adopt, say, GLSEN’s model policy on transgender accommodation, in the expectation that doing so will send a signal of compliance to the powerful ACLU. Unlike the Biden administration, neither GLSEN nor the ACLU are accountable to voters. Both can adopt radical policies far afield from what even an ideologically driven Department of Education can hope to achieve. This is essentially a racket underwritten by the federal government.
Following OCR’s logic to its conclusion, a school with a parental-notification policy could be guilty of “hostile environment harassment,” as defined in the new Title IX regulations. After all, some would argue, such a policy could be “subjectively and objectively offensive and . . . so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” Indeed, though the regulatory update goes into effect in August, the Office for Civil Rights has already cited this rationale to launch an investigation against a school district for its parental-notification policy.
The Biden administration, in its Title IX guidance and elsewhere, has stretched the term “abuse” beyond its obvious connotation to include failing to “affirm” a child’s gender identity. Proponents of the administration’s position claim that trans-identified students are at high risk of rejection and could face abuse at home if they are “outed” to their families, but we’ve noted serious problems with this argument. In effect, so has England’s National Health Service, which recommended last September that fit parents should always be involved in the decision-making process regarding social transition in school.
Indeed, mental-health outcomes for gender-distressed youth are better when they have supportive relationships with their family. “Outcomes for children and adolescents are best,” Cass writes, “if they are in a supportive relationship with their family. For this reason parents should be actively involved in decision making unless there are strong grounds to believe that this may put the child or young person at risk.” Secret social-transition policies—which Parents Defending Education estimates are in effect in 18,878 schools in the United States, affecting close to 11 million students—establish an adversarial dynamic between parents and children.
The Cass Review contrasts an “evidence-based” approach to managing gender-related confusion and distress with a “social justice model,” in which considerations of evidence are secondary to political goals. The Biden administration’s Title IX rules, which subordinate the interests of vulnerable children to those of powerful interest groups in the Democratic coalition, clearly belong in the second category.
Photo by Leigh Vogel/Getty Images for National Women's Law Center