Title IX: Victory and Hope as Multiple Courts Rule Against Biden

This past week has probably been one of the busiest on record for Title IX, the Congressional ban on sex discrimination in federally funded education. In a span of five days, four federal courts ruled against the Biden Education Department for unlawful agency action, including its obnoxious new Title IX rule, which guts due process and imposes fringe sexual politics on schools.

That said, five additional federal courts are expected to weigh in on Title IX in the coming weeks. So the summer fun has just begun.

Title IX began as a benign 1972 Congressional “equality opportunity” law. Now, however, it’s the weapon of choice for feminists, who run most of American education and also most of the federal bureaucracy. Since as early as the Clinton Administration, they have tinkered with definitions of the statute’s terms, including basic terms such as “discrimination,” which they claim should include subjective perceptions of offense, which might include the emotional trigger of, “May I hold the door open for you?” These “micro-aggressions” replace objective harm originally targeted by the law in the form of denied educational opportunity.

But Biden’s regime is the most radical yet. Its new rule redefines the term “sex” itself to include same-sex orientation as well as “gender identity.” This redefinition means that those with moral objections to homosexual conduct—about half the world‘s population, if Christian and Islamic adherents are the guide—could be found in violation of federal law if they voice these objections at an American school.  Similarly, those opposed to the sexual degeneracy lobby—aka the “LGBTQRSTUVWXYZ” movement—would likewise be offenders if they refused to use pronouns demanded by activists.

As for due process, Biden’s rule brings back kangaroo courts by returning to the “single investigator” model of adjudication, which it now calls the “individual meeting method.” Different names, same practice. By whatever label, dispute resolution methods that allow a single school official to act as police, judge and jury are due process disasters.  Worse, “sex offender” then becomes a permanent mark on a student’s transcript, usually resulting in expulsion.

Because of these radical provisions, Biden’s rule received more negative public comments than any prior proposed Title IX regulation.  Undeterred, the Department’s Office for Civil Rights proceeded with it anyway, publishing the final rule in the Federal Register on April 29, with an effective date of August 1.

But America was ready. Within a week of the rule’s publication, 26 states sued the Department in eight separate lawsuits for egregious executive overreach. As Louisiana’s complaint explained, Title IX is actually a spending clause statute, which means it conditions federal funds—including student loans—on a school’s agreement to not discriminate based on sex.

But this new rule changes the entire ball game by demanding compliance not with nondiscrimination but compliance with radical sex and gender ideologies … or schools will lose millions of federal dollars. In reality, the rule rewrites not just this contractual relationship but arguably the Congressional statute itself.  The court filings of Louisiana and other plaintiff states point out that, in attempting to redefine the central term “sex,” the Department makes policy—or addresses a “major question” of policy and law, which is the exclusive purview of Congress.

The lawsuits also raise other obvious legal and constitutional issues, such as the rule’s threat to free speech, to free exercise of religion, and, ironically, to the rights of female students under Title IX itself, such as having their own bathrooms, locker rooms, and athletic teams—since the rule will undoubtedly be used by some males as authority to use female facilities or to play on women’s teams, notwithstanding the Department’s claims to the contrary.

But, great news! Thus far, all courts to review the Education Department’s Title IX actions—including the rule—have found them unlawful. Between June 13 and 18, four federal courts sided with the plaintiff states and against the Administration. The United States District Court of Louisiana was the first to lay down the law, ruling on June 13 that the regulation likely violated not only the First Amendment but also the Constitution’s Spending Clause and the Administrative Procedures Act, the federal statute governing agency action.

Most important, the Louisiana court shot down the Administration’s supposed legal authority for imposing all this gender ideology via Title IX.  Since 2020, Biden & Co. have claimed that the Supreme Court decision in Bostock v. Clayton County means that the term “sex” in all federal law must include gender ideology since the Bostock opinion found that “sex” in a federal employment law—called Title VII—could include a female employee who dressed as a male.

As problematic as Bostock was, its scope was limited by the Supreme Court itself, such that attempts to apply this new definition of “sex” in other areas of law would violate the opinion. The Bostock Court explicitly rejected extending the definition to other federal civil rights statutes such as Title IX, stating: “None of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”  The Louisiana court basically rebuked Biden officials for ignoring the Supreme Court on this point, stating: “Defendants seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX.  Such changes are undoubtedly contrary to Title IX and to the Law.”  Touche!

Courts in Kentucky, Texas, and the Sixth Circuit were next to rule against Biden, though the latter two opinions enjoined guidance from the Education Department, not the new Title IX rule itself, though the guidance was basically identical to the new rule’s redefinition of “sex.” The court opinion from Kentucky was even more forceful than Louisiana’s, concluding: “The Department’s actions are arbitrary and capricious …  a rule that compels speech and engages in such viewpoint discrimination is impermissible.”

The immediate result of these court decisions is that the bad Biden rule has now been enjoined in the Plaintiff states of Louisiana, Kentucky, Montana, Mississippi, Idaho, Tennessee, Ohio, Indiana, Virginia and West Virginia, while similar guidance has been enjoined in Texas and thirteen additional states covered by the Sixth Circuit opinion.

This blow to Biden’s Title IX ideologues is stunning.  But more importantly, these rulings represent hope for sanity in America. The weaponization of well-intentioned civil rights laws to impose fringe sexual politics is a twisted, top-down globalist movement to destroy healthy human sexuality and healthy family formation. Ultimately, this means the destruction of social cohesion and the destruction of a country.  But this week in Title IX developments, Biden weaponizers lost and America won.

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. She authored the 2020 Report, Dear Colleague: The Weaponization of Title IX.

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About Teresa R. Manning

Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.

Photo: WASHINGTON, DC - JUNE 23: Demonstrators listen to the speaking program during an "Our Bodies, Our Sports" rally for the 50th anniversary of Title IX at Freedom Plaza on June 23, 2022 in Washington, DC. The rally, organized by multiple athletic women's groups was held to call on U.S. President Joe Biden to put restrictions on transgender females and "advocate to keep women's sports female."(Photo by Anna Moneymaker/Getty Images)

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