In 1972, Title IX added “sex discrimination” on the part of schools and universities to the Civil Rights Act of 1964.
In 2011, the Obama Administration tried to change the meaning of that term in a “Dear Colleague letter” asserting that sexual violence by an individual could constitute a sex discrimination complaint against a school, college or university. In 2016, another such letter extended that protection to “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”
A Legislative Roller Coaster
When Donald Trump became president in 2017, his Secretary of Education, Betsy DeVos, rescinded these Obama-era regulations. When Joe Biden took office in 2021, he set out to reverse Mr. Trump’s direction and expand Mr. Obama’s policies. The revised direction was announced on April 19, 2024, to take effect on August 1, just in time for the upcoming school year.
Twenty-eight states have brought suit to delay or overturn the Biden regulations. The states of Louisiana, Mississippi, Montana and Idaho joined in a single suit against the U.S. Department of Education (DoE). On June 14, Judge Terry A. Doughty in Louisiana granted an injunction to those four states.
The New York Times quoted the judge.
“Title IX was enacted for the protection of the discrimination of biological females. However, the final rule may likely cause biological females more discrimination than they had before Title IX was enacted.”
In that action, the State of Montana was represented by its solicitor-general, Mr. Christian Corrigan. The day before Judge Doughty’s ruling, Teresa Manning of the National Association of Scholars interviewed Mr. Corrigan in a webinar titled Biden’s Bad Title IX Rule: What You Need to Know.
A Winning Strategy
In it, Mr. Corrigan laid out the legal strategy he applied to this critical case. It is a blueprint for arguments that could carry the day in hundreds of similar disputes.
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Solicitor-General Corrigan divided the States’ claims into “two buckets.” The first consisted of substantive challenges, which argue that the rules actually contradict established law. The second outlined procedural challenges, arguing that the DoE did not follow the proper process when it wrote the rules.
Breaking the Law
Seven substantive challenges are paraphrased and briefly explained here.
- Incorporating sexual orientation and gender identity into the definition of sex discrimination in Title IX is illegal.
- The DoE forces the states to adopt policies that violate laws in those states.
- Giving an executive branch agency like the DoE the power to redefine sex gives them the ability to make laws, a power that the Constitution reserves to the legislative branch.
- Forcing teachers and students to use “preferred pronouns” violates their freedom of speech as defined by the First Amendment.
- By focusing on institutions, the new standards illegally lower the standard of liability against individuals who violate valid sexual harassment laws.
- Since the regulation never defines “sexual identity” or “gender identity,” the resulting rules lack objective standards, creating confusion among those who must enforce them.
- The regulations reinstitute the types of university “kangaroo courts” that violated the rights of students accused of sexual harassment during the Obama Administration.
Changing the Rules Requires Following the Rules
The procedural challenges are more technical and difficult to understand but are potentially just as important.
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First, the Administrative Procedures Act (APA) prevents federal agencies from making decisions that are “arbitrary, capricious or an abuse of discretion.” Under the APA, agencies must be able to explain their decisions. They must also produce internally consistent rules, meaning that one part of the rule cannot violate another part—or other already established rules. Last, the agency must demonstrate that it “meaningfully considered” public comments. In this case, there were roughly 240,000 public comments—although no figures for the number of those comments that supported or opposed the new rule are available.
Second, the DoE rule violates the “Major Questions Doctrine.” This principle states that the answers to essential issues must come from the people’s representatives in Congress, not from appointed bureaucrats.
This rule violates the doctrine in two ways. First, it tries to change the definition of a law that has been in force for over a half-century in a way that no Member of Congress in 1972 could have anticipated. More importantly, there could be no question more basic to human existence than the definition of male and female.
Third, Title IX is a “spending clause statute.” Under its provisions, schools—including state-supported colleges and universities—receive money from the federal government. Those receipts are conditioned on specific criteria established by Congress. Therefore, in addition to being a law, Title IX is also a contract. Redefining sex, as the DoE is attempting to do, changes the terms of that contract over fifty years after the states entered into it.
The Athletics Rule
The last procedural challenge is known as the “Athletics Rule.” Title IX law actually mandates separate athletic facilities—locker rooms, training rooms and so on—for men and women. For decades, not providing separate facilities has been evidence of sexual discrimination. Now, the DoE, on its own authority, is ordering these same schools to violate an important provision of the same law that the DoE is pretending to enforce.
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The DoE justifies many of these procedural violations by casting blame on the Supreme Court. DoE claims it is following the 2020 decision in Bostock v. Clayton County, in which the Court held that discrimination because of sexuality or gender identity is illegal.
At first glance, this argument appears valid. Many laws change, and citizens and institutions cannot ignore those changes. However, Solicitor-General Corrigan argues that “the Bostock rule” does not apply to this situation. The Bostock case concerned a workplace situation. Such discrimination is covered by a different law known as Title VII. Additionally, Mr. Corrigan insists that the Supreme Court specifically stated in the Bostock decision that this case should not be applied to Title IX cases.
The Hopeful Beginning of a Long Road
Obviously, a single decision by a single judge in Louisiana will not settle this controversy. The size of the liberal “war chest” can only be imagined. Liberals will fight—and fight hard—to enshrine their perverse ideas into American law.
However, the courage of the twenty-eight states that challenged these rules shows a healthy and vital reaction is in progress. Judge Terry A. Doughty dealt liberals a severe blow by delaying their progress. Hopefully, the same arguments Solicitor-General Corrigan detailed can prove victorious in other settings.
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Indeed, three days after Judge Doughty’s ruling, another federal judge, Danny Reeves, issued a similar injunction in a separate Title IX suit. The Los Angeles Times quoted Judge Reeves as saying that President Biden’s regulation is “arbitrary in the truest sense of the word.” This second ruling temporarily blocks the rule from taking effect in Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia. According to Reuters, “Lawsuits by 16 other states challenging the rule remain pending.”
Defending the truth requires preparation. Understanding these arguments could assist defenders of natural law in helping neighbors and electing pro-family local school boards. It is essential to overthrow such arbitrary, harmful and toxic rules threatening the education world.