During the Trump administration’s time in power, transgender students have lost the ability to fight for their Title IX protections against schools that discriminate against them. Meanwhile, the Supreme Court has greenlit the targeting of LGBTQ+ students repeatedly this term. Maryland, though, appears poised to push back with a new bill that is rapidly advancing through the state legislature. HB 649, which has already passed the House of Delegates 100-35, would significantly expand protections for transgender students across the state, giving them a private right of action to sue schools that discriminate against them in "any program or activity"—a phrase borrowed directly from Title IX that would explicitly protect participation in sports, admissions, and access to school facilities and programs statewide. The bill was heard in a Senate committee yesterday.
The bill states that "an educational institution may not exclude an individual from participation in, deny a person the benefits of, or subject an individual to discrimination within, any program or activity of the educational institution on the basis of race, color, national origin, ethnicity, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, disability, age, or marital status" (emphasis added). The language is significant and expansive: the bill defines "educational institution" to include both public and nonpublic prekindergarten programs, elementary schools, secondary schools, institutions of postsecondary education, institutions of higher education, and any other educational program leading to a certificate, diploma, or degree—covering virtually every school in the state from pre-K through college.
The bill is notable for two reasons. The first is its use of the phrase "any program or activity" in its protection of transgender students. Maryland's existing nondiscrimination law, the 2022 Inclusive Schools Act, prohibits schools from "discriminating against” students based on gender identity—but does not explicitly guarantee the right to participate in all school programs and activities. The current vague language can leave room for schools to argue that barring a trans student from a sports team or denying access to facilities does not constitute discrimination. Only a handful of states have closed this gap. California's landmark 2013 School Success and Opportunity Act explicitly guarantees transgender students the right to "participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity." Connecticut similarly requires "equal opportunity to participate in school activities, programs, and courses of study" regardless of gender identity. Maryland's HB 649, by adopting the Title IX formula—"exclude from participation in, deny the benefits of, or subject to discrimination within any program or activity"—would place the state among this small group.
Secondarily, the bill creates a private right of action. Under Maryland's current framework, a student alleging discrimination must depend on government agencies acting in their favor. HB 649 changes that. A transgender student experiencing discrimination in bathrooms, sports, dormitories, or any other school program would be able to sue the school directly in state court, without waiting for the state superintendent or the attorney general to act on their behalf.