Last month, the Biden Education Department announced plans to issue two Title IX rules in March, having missed prior deadlines in May and October. The delays are good news since both rules are bad, representing a more top-down sexual pathology in America. Unfortunately, 2024 looks like more of the same unless Congress acts.
Title IX is the 1972 Congressional ban on sex discrimination in federally funded education that is now used to advance radicalism in schools. For example, cases of alleged sexual misconduct on campus are now handled by the school Title IX office, where staff often presume guilt and expel male students within hours of a complaint. Worse, the law is also now used to promote gender ideology—men pretending to be women, for example—as well as homosexuality and cross-dressing.
So what was originally a ban on sex discrimination has become a weapon for the radical left.
Biden’s two proposed Title IX rules illustrate the point: The first would not only remove due process protections for those accused of campus sexual misconduct (such as the right to an impartial proceeding), but would also redefine “sex” to include same-sex orientation and gender identification. This means that those who question the morality of homosexuality or who refuse to use pronouns demanded by gender ideologues could be found in violation of federal law. The second proposal attacks women’s sports by prohibiting single-sex teams as a default category.
But that’s not all. In what appears to be an underhanded move, the department is already imposing these redefinitions of sex pursuant to what it calls a “Notice of Interpretation,” even though courts enjoined it from taking effect. How did this happen?
Some background: In June 2021, six months after Biden’s inauguration, the Education Department announced it would enforce Title IX as if it protected same-sex orientation and gender identity—that is, the Department was acting as if the policy changes suggested in its proposed rules were already part of the law, as it interpreted them. The announcement was accompanied by a “Frequently Asked Questions” entry and a “Notice” in the Federal Register.
Despite the formality of these documents, they were actually an end run around the rule-making process required by the Administrative Procedures Act (the APA), the process that’s now underway with the two proposals. That process requires not only that proposed rules appear in the Federal Register but also that the public have time to make comments, to which the proposing agency must respond. (Biden’s proposed rules were delayed precisely because they received a record number of negative comments.)
So the June 2021 announcement was an early attempt to bypass this process. Thankfully, Tennessee led 20 states in suing the Department to stop this “Notice of Interpretation” from being enforced, pointing out that it not only violated the APA but also the Congressional intent behind Title IX. Both the trial court and the Sixth Circuit Court of Appeals agreed and enjoined the Department from enforcing it.
But here’s the rub: The injunction only applies in the 20 plaintiff states. Biden officials therefore decided to enforce the Notice of Interpretation as if it were law outside those states, even though the legality of the notice is not only dubious but is a live question right now before the courts.
How do we know the department went ahead and enforced the notice? Because it has already investigated California’s Taft College for a Title IX complaint based on the redefinitions in the notice: The Taft College complaint came from a student who supposedly switched sexes (enrolled as a male, then claimed to be female) and accused the faculty of failing to use the pronouns he demanded. It was also alleged that faculty referred “to transgender… individuals” in a derogatory manner, as if these complaints, even if true, violated federal law. They don’t.
Adding insult to injury, the administration, at the same time, appears to be observing the APA for its proposed rules, which contain the very same redefinitions of “sex” as the Notice of Interpretation. So, on the one hand, the department looks like it’s following the APA—publishing proposed rules and receiving public comments—but on the other hand, the department is already applying the redefinitions to schools as if they were binding law. This makes a mockery of the rule-making process and perhaps also of the pending litigation.
What’s more, all this resembles the 2011 “Dear Colleague Letter” (“DCL”) of the Obama Education Department, which told schools to get tough on alleged sexual misconduct by skimping on due process, resulting in hundreds of students wrongly branded as sex offenders. The DCL was universally denounced precisely as an end run around the APA and was eventually withdrawn. The DCL enforcers, including Biden’s current Title IX Czar, Catherine Lhamon, were also hauled before Congress to answer for their overreach. Given this history, is the current overreach worse? The two tracks seem designed to distract and confuse observers; the first follows the APA, and the second bypasses it.
The chaos and chutzpah were on display during an oral argument at the Sixth Circuit last April. When Department lawyer David Peters was asked to explain the meaning and legal effect of the interpretation and accompanying documents, he stated, “They are not what’s being enforced.” Tell that to California’s Taft College!
Or square that with the first sentence in the Department’s June 2021 announcement: “The U.S. Department of Education’s Office for Civil Rights today issued a Notice of Interpretation explaining that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.”
Given that Peters flatly contradicted both the Department’s plain statements and its past actions, perhaps Tennessee should notify the Sixth Circuit of what looks like rank dishonesty, similar to contempt of court. The Court was already suspicious. For example, one judge told Peters, “I’m just still puzzled about why the administration would put out some documents that you are now claiming don’t mean anything.” Another added: “Well, why are [these documents] even there then? Were they picked out of thin air?”
In short, Biden officials are playing fast and loose both with the rule-making process and with federal judges. Congress should investigate to end this confusion and contempt of law. That would make the start of 2024 a truly happy new year.
Teresa R. Manning is Policy Director at the National Association of Scholars, President of the Virginia Association of Scholars and a former law professor at Virginia’s Scalia Law School, George Mason University.