The right-wing uproar about Title IX

For the last 50 years, Title IX has had an extraordinary impact on the nature of higher education in the United States. Passed in 1972 as an amendment to the Higher Education Act, Title IX prohibits sex-based discrimination at any school that receives funding from the federal government. The law ensures that colleges and universities are open and welcoming to women. Since Title IX's passage, the percentage of female college students has increased from 42% to 58%.

Last month, the Biden administration released a significant update to the Department of Education regulations that guide colleges on how to implement Title IX. The new rules are over 1,500 pages long, but the biggest change is the expansion of the regulation's protections against discrimination and harassment. The rules now explicitly prohibit discrimination and harassment on the basis of gender identity or sexual orientation. 

The legal basis for this expansion is the Supreme Court's 2020 decision in Bostock v. Clayton County. Justice Neil Gorsuch, one of the court's conservative members, wrote the majority decision in the case. Gorsuch found that Title VII prohibits employment discrimination on the basis of gender identity or sexual orientation. Like Title IX, the text of Title VII prohibits employment discrimination based on "sex." But Gorsuch, in a decision that was also joined by Chief Justice John Roberts, found that discrimination because of gender identity or sexual orientation always involves sex discrimination. Therefore, discrimination on the basis of gender identity or sexual orientation violates Title VII. 

In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result… But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 

The Bostock decision does not expressly consider Title IX, which wasn't at issue in that case. But since Bostock, other federal courts have ruled that Title IX extends to gender identity and sexual orientation. Further, the Department of Education notes that "the statutory prohibitions against sex discrimination in Title VII and Title IX are similar," so it is appropriate to look at Bostock to determine the appropriate scope of Title IX.

The primary impact of the new Title IX regulations is that trans students would be permitted to use the bathrooms that match their gender identity, and "school staff will be compelled to call trans and non-binary students by their preferred names and pronouns." The new regulations do not address the controversial issue of participation in women's athletics, which is being considered in a separate rulemaking. 

Meanwhile, right-wing politicians, activists, and media outlets are casting the new rules as "a grave threat to the safety and opportunities of women and girls."

15 states sue to protect the right to discrimination against LGBTQ people on campus

Within a few days of the new Title IX rules being finalized, several Republican Attorneys General filed lawsuits seeking to block the rules from going into effect on August 1. As of today, 15 states have filed four lawsuits against the federal government over the changes to Title IX implementation. 

The lawsuit filed by Texas Attorney General Ken Paxton (R) claims that Bostock does not "allow" the Department of Education to find that a prohibition against sex discrimination includes a prohibition against discrimination based on sexual orientation or gender identity. This is clearly false. The Bostock ruling explicitly declines to interpret Title IX and other statutes.

A separate lawsuit, filed by the Attorneys General of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia, acknowledges that Bostock "expressly declined to 'prejudge' whether its decision…would 'sweep beyond Title VII' to laws such as Title IX." That lawsuit, which is over 800 pages long, relies on the interpretation of Bostock by the Department of Education under Trump and a handful of post-Bostock cases that argue that Title IX does not extend to sexual orientation or gender identity. It also claims that the new Title IX rule will impact athletics, even though the text of the rule excludes athletics. 

GOP officials instruct schools to ignore the federal government

The lawsuits challenging the new Title IX rule were only filed days ago, and all the cases are still pending. The lawsuits seek to put the rule on hold, but no injunction has been issued. Nevertheless, several Republican officials are instructing schools in their state to ignore the federal government. 

Nebraska Governor Jim Pillen (R) "announced that Nebraska will not comply with the Biden administration’s new rules for Title IX." In a statement, Pillen said that the state "must fight against radical gender ideology and vigorously protect the rights of Nebraska women and girls." In Oklahoma, State Superintendent Ryan Walters (R) described the rule change as "unconstitutional and illegal" and warned schools to "completely ignore" the new federal regulation. Walters accused "Biden and his posse [of] eradicating women’s rights and putting women in danger." In Florida, Governor Ron DeSantis (R) accused Biden of "undermining opportunities for girls and women, violating parents' rights, and abusing his constitutional authority," adding "[w]e will not comply." 

Of course, state officials are not responsible for deciding whether federal regulations are unconstitutional. That is up to the court system. Regardless, states are free to ignore these rules but if they do so, their educational institutions could lose federal funding. 

"Attempting to erase women as a category"

Right-wing advocacy groups and news outlets have framed the new rules as an attack on parents, women, and students. Among those who criticized the new rules is Moms for Liberty. The right-wing group claims, without evidence, that “[t]he new Title IX regulations are unconstitutional, erase women and girls, eliminate due process, compel speech, and strip parents of their fundamental right to direct the upbringing of their child including decisions regarding their education, medical care, morality, and religion.” In an interview with Fox News, Moms for Liberty Co-Founder Tiffany Justice lamented that the changes will “supersede” the group's efforts to stop “the teaching of gender ideology and sexual orientation instruction in schools.”

In a letter to Secretary of Education Miguel Cardona, a coalition of organizations led by Parents Defending Education argued the new rules “put the rights, safety, and basic dignity of all students at risk.” It also noted that the new rules “will mean the end to sex-separated sports,” even though the regulation does not extend to athletics. Meanwhile, Independent Women’s Forum, a dark money group with ties to the Koch network, announced it was filing a lawsuit against the Biden Administration over its “Illegal Title IX Rewrite.” The group, which spent $6 million on anti-trans messaging in the 2022 midterms, said Biden lacked the “legal authority” to make the changes and was “impos[ing] a woke agenda.” Alliance Defending Freedom, an anti-abortion group, said it “plans to take action to defend female athletes, as well as school districts, teachers, and students who will be gravely harmed by this unlawful government overreach.” 

The Daily Wire has also run several stories on the topic, suggesting Biden has “abolished Title IX” and teachers will begin mass-reporting parents “who object to schools that socially transition their children.” Similarly, Libs of TikTok has baselessly claimed that the new changes are “allowing males to invade female sports” and that Biden is “attempting to erase women as a category in this country.”