The White House from Washington, DC, Public Domain, Via Wikimedia Commons
A federal judge blocked former President Joe Biden's Title IX rule on January 9, dismantling efforts for strengthening discrimination protection based on sexual orientation and gender.
Title IX of 1972, signed into law by President Richard Nixon, protects individuals from facing discrimination based on sex in programs and educational settings that receive federal financial assistance. This includes universities, colleges and elementary and secondary schools. Title IX was modeled after the Civil Rights Act of 1964, which prohibited discrimination based on race in any federally funded programs and activities. However, the Civil Rights Act does not limit itself to educational institutions and programs like Title IX does.
Biden's journey to overhaul Title IX's former regulations goes back to 2021, when he signed an Executive Order titled "Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity" on March 8, 2021. This executive order intended to change the previous guidelines issued on May 6, 2020.
Secretary of Education Betsy DeVos and the Trump administration created the 2020 Title IX regulations to clarify and modify requirements related to Title IX violations. These regulations addressed areas such as the role of Title IX Coordinators, grievance procedures, protections against retaliation, and the intersection of Title IX with constitutional rights and other laws.
The regulations faced backlash, with one reason being the implementation of cross-examinations during sexual harassment cases. Critics said cross-examinations would cause further distress to complainants, deter the reporting of wrongdoing, create an unnecessarily combative process and unfairly benefit those who can afford legal representation.
After Joe Biden revisited the Title IX regulations in 2021, he used the executive order to push that "all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity."
Biden officially rewrote the Title IX regulations on April 29, 2024, incorporating changes in how schools handle sexual harassment cases and strengthening protections for LGBTQ+ students. The regulations removed cross-examination and live hearings from the process of campus disciplinary action. They also clarify that "sex discrimination" includes "discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity." The new regulations went into effect on August 1, 2024.
Many Republican states opposed the new regulations, and the Biden administration's rewrite faced at least eight lawsuits, with 26 states signing onto those lawsuits. Conservative student advocacy groups, including Moms for Liberty, Young America's Foundation and Female Athletes United, also prevented the rules from being implemented at any school a member's child attended. This banned the rule from being enacted in more than 400 K-12 schools in 44 states, including schools in states that haven't decided to partake in the lawsuit.
The main issue expressed with the new Title IX rewrite is that it expanded the scope of sex discrimination to include "gender identity." Opposing states contend the rule compels schools to violate their principles by allowing transgender and nonbinary students to use restrooms and locker rooms that correspond with their gender identity, contending that these policies can compromise the safety and privacy of cisgender students.
The Department of Education justified the expansion of Title IX by referring to the 2020 case Bostock v. Clayton County, Georgia. The case centered on Gerald Bostock, a former child welfare services coordinator who was terminated from his position for joining a gay recreational softball league. Bostock argued his dismissal constituted unlawful discrimination under Title VII, which prohibits employment discrimination "because of ... sex."
Lower courts initially dismissed Bostock's claims, relying on precedent that excluded sexual orientation from Title VII's protections. However, the Supreme Court, with Justice Neil Gorsuch authoring the majority opinion, ruled that discrimination based on sexual orientation or gender identity inherently involves sex-based considerations, thereby violating federal law. Chief Justice John Roberts joined Gorsuch and the Court's four liberal justices in a majority 6-3 vote, emphasizing that the statute's plain language necessitates this interpretation.
Dissenting opinions, authored by Justices Samuel Alito and Brett Kavanaugh, argued Congress did not originally intend for Title VII to cover LGBTQ+ individuals and criticized the majority for expanding the law beyond its historical scope. Despite these objections, the ruling marks a significant victory for LGBTQ+ rights, reinforcing protections against workplace discrimination nationwide. In a 6–3 ruling, the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 extends workplace protections to LGBTQ+ employees, prohibiting discrimination based on sexual orientation and gender identity.
The states disagreed with the Department of Education's logic because Bostock doesn't apply to Title IX. On January 9, the lawsuit's decision revealed that a federal court judge threw out the rule, eliminating Biden's rewrite of Title IX.
In the case filing, Eastern District of Kentucky Court Chief Judge Danny Reeves rejected the rule based on how Title IX's prohibition on "sex" discrimination does not extend to the conduct outlined in the hostile-environment harassment definition under part 106.2 in the Nondiscrimination based on Sex in Education Programs rule. This definition characterizes a hostile environment as arising from unwelcome sex-based conduct that is both subjectively and objectively offensive and so severe or pervasive that it restricts or denies a person's access to education. Determining whether such an environment exists depends on factors such as the nature, frequency, and context of the conduct, the roles and interactions of the individuals involved, and any broader patterns of harassment within the educational setting. It also doesn't apply to 106.10, or 106.31(a) 's regulation of sex-segregated facilities and programs, and "(b) it violates the Spending Clause and the First Amendment; (c) it is arbitrary and capricious; and, therefore, (d) the Plaintiff States, their political subdivisions, and their recipient schools need not comply with the Final Rule to receive federal funding."
Certain states have called this decision a "huge win for Tennessee, common sense, and women and girls across America." With the transition to the Trump administration, the Department of Education will be responsible for reassessing the interpretation and implementation of Title IX. Any policy revisions could impact how schools address issues related to gender identity and sexual orientation.
As debates over the appropriate application of Title IX continue, differing perspectives will likely shape discourse about its role in educational institutions.
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