News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Legal Challenges to New Title IX Regulations Begin, Blocking Legal Protections for Gender Identity in Education

pexels-oriel-frankie-ashcroft-3247631-6054385-1-scaledTitle IX, passed by Congress over fifty years ago as part of the Educational Amendments of 1972, begins with a deceptively simple sentence: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  

Since 1972, the law has been interpreted by the courts, by the Department of Education (the agency charged with implementing the law), and the Department of Justice (responsible for Title IX enforcement in federal agencies). This April, the Biden administration finalized a long-awaited set of new regulations, which will replace those put in place in 2020 under President Trump. Among other provisions, the new regulations radically change the procedures for reporting and adjudicating allegations of sexual misconduct at colleges and universities. The new regulations also make clear that the term “sex” as used in Title IX includes sexual orientation and gender identity. Before the Biden regulations go into force in August, however, they are already coming under legal attack. In June, two federal district courts, one in Kentucky and one in Louisiana, issued preliminary injunctions blocking the enforcement of the new regulations in ten states: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia. 

The plaintiffs included the affected states, plus an association of Christian teachers and a female student-athlete in the Kentucky case, and a group of local public schools boards in the Louisiana case.  They primarily challenged the new regulations’ inclusion of discrimination based on gender identity within the ambit of discrimination “on the basis of sex,” with a view to its effects on primary and secondary education. Following the pattern of recent conservative attacks on trans and non-binary people, the plaintiffs objected to how the inclusion of gender identity would require public schools to allow students to use bathrooms and to play on sports teams associated with their gender identity, as well as potentially mandating that teachers and classmates use the pronouns used by a student themselves. 

A key issue in both cases was the reach of the Supreme Court’s 2020 decision in Bostock v. Clayton County. There the Court held that Title VII of the Civil Rights Act of 1964, which bans employment discrimination “because of” sex, also protected LGBTQ people, because sexual orientation and gender identity are “inextricably bound up with sex.” While the Trump Department of Education stated that Bostock did not apply to Title IX, as soon as Biden became president both the Department of Education and Department of Justice issued notices making clear that “sex” in Title IX includes sexual orientation and gender identity. The Department of Education then included this interpretation in the new Title IX regulations. Both district courts hearing the challenges to the regulations disagreed, concluding instead that Bostock was limited to the Title VII employment context. (Many federal courts around the country have held that Bostock does in fact apply to Title IX; the First Circuit, which covers Massachusetts, has not yet directly addressed the reach of Bostock, but has independently treated Title IX as applying to sexual orientation and gender identity.) The judge in the Kentucky case also signaled his disagreement with Bostock’s underlying reasoning, calling Justice Alito’s dissent in the case “compelling.” 

With Bostock set aside, both district courts found the new regulations were contrary to the “on the basis of sex” language in Title IX.  The judges looked to evidence of the “ordinary meaning” of “sex” at the time of the enactment of Title IX in 1972, and concluded that the statutory language referred to binary biological sex, i.e. being either “male” or “female,” and not to gender identity. Both courts also saw the plaintiffs as likely to succeed under a number of other legal theories, including the “major questions doctrine” (the view, popular with a majority of the current Supreme Court, that questions of “vast economic and political significance” cannot be decided by executive agencies without clear delegation by Congress) and the clear-statement rule under the Constitution’s Spending Clause (requiring that Congress be unambiguous about conditions attached to any federal funds given to states).

Both judges also addressed the First Amendment implications of the new regulations, especially the definition of hostile environment harassment as “unwelcome sex-based conduct that is subjectively and objectively offensive and is 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.” The Trump Title IX regulations required harassment to be “severe, pervasive, and objectively offensive,” drawing on the standard used by the Supreme Court for determining when a school is liable to a student in monetary damages. The “severe or pervasive” language mirrors pre-Trump interpretations and guidance about sexual harassment from the Department of Education.  Both courts were concerned about the implications of the regulation’s definition of harassment for students and teachers who, e.g., refused to use a student’s pronouns; both concluded that the standard likely violated the First Amendment, as plaintiffs argued. The judge in Kentucky found in particular that disciplining teachers for misgendering students would amount to compelling their speech about a matter of public concern, and that the sex-based harassment standard was so vague as to chill speech even in the absence of discipline. Free speech rights in public schools for students and for teachers already are a complex and evolving field of law, and the judges’ rulings in these areas will not be the last word. 

Although the district court judges declined to give their injunctions nation-wide effect, both blocked the new regulations in their entirety (rather than just certain provisions). Two similar lawsuits are pending in other district courts, one in Alabama and one in Texas. Eventually, appeals will almost certainly be brought in all four suits. For the time being, trans and non-binary students in the ten affected states will lack the protections of the Title IX regulations (though any court decisions in those states interpreting Title IX consistent with Bostock will still govern). Additionally, because the new regulations were enjoined as a whole in the affected states, Title IX procedures across the country for all students, including those at private colleges and universities, will be an uneven patchwork at the beginning of the school year this fall. 

 If you or someone you know is facing discrimination or harassment for being trans, or is involved in a Title IX proceeding, fill out our online intake form or call us at (617) 742-6020 to be connected with one of our lawyers. 

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