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[UPDATE] A fourth federal judge says that the Biden administration’s effort to rewrite Title IX is unconstitutional and has blocked it from going into effect in four more states, expanding the number of states protected from the new rule to 14.
U.S. District Court Judge John W. Broomes issued the injunction on Tuesday. It is the most expansive injunction blocking the new Title IX rule thus far.
This case, referred to as Kansas v. Department of Education, was brought by the states of Kansas, Utah, Alaska, and Wyoming; three organizations, including Moms for Liberty, Young America’s Foundation, and Female Athletes United; as well as one middle school girl named Katie Rowland.
Broomes ruled that when Congress passed Title IX in 1972, it was clear that the law’s prohibition on sex-based discrimination meant biological sex.
He noted that the Department of Education (DOED) did not make much of an effort to dispute that Title IX refers to biological sex, rather than gender identity, but instead argued that under the Supreme Court decision in Bostock v. Clayton County “discrimination on the basis of gender identity is discrimination on the basis of biological sex.”
The administration has rested its various sexual orientation and gender identity mandates, including the Title IX changes, almost completely on the Bostock ruling — despite the fact that the Supreme Court explicitly stated that its ruling was specific to employment discrimination under Title VII of the Civil Rights Act of 1964 and did not relate to Title IX or sex-segregated facilities.
“If Bostock expressly disavowed its application to bathrooms and showers under Title VII, it certainly has no application to bathrooms and showers under Title IX,” wrote Broomes.
He elaborated that Bostock was a case involving adults and private employment, calling it a “live-and-let-live” case barring employers from getting involved in their employees’ lifestyle choices when those choices had no bearing on their ability to perform their job duties.
“By contrast, this case involves the government’s decision to interpose itself into the field of education, an area traditionally left to state and local governments and the schools, themselves, and in which the government’s edicts result in the subordination of the interests of non-transgender students (many of whom are minors) in free speech, privacy, and safety to the interests of transgender students in expressing and conducting themselves in accordance with their individual notions of gender identity,” Broomes ruled.
Broomes also noted that the rewrite of Title IX would upend Title IX’s goals, stating that rather than guard women’s safety, privacy, and opportunities, the rule would instead “require schools to subordinate the fears, concerns, and privacy interests of biological women to the desires of transgender biological men to shower, dress, and share restroom facilities with their female peers.”
The judge also ruled that the Title IX rewrite violated the First Amendment rights of dissenters, violates the Spending Clause, and is arbitrary and capricious.
He explained that one of the DOED’s primary faults was its refusal to provide definitions for terms such as “gender identity” or an objective standard for what would constitute sexual harassment. Plaintiffs argued that stating one’s beliefs about sex and gender identity could be considered harassment under the rule. DOED did not ever provide a clear answer on what would or would not be considered harassment.
Broome recalled that “There was not one lawyer in the courtroom…who was able to offer any possible explanation of what a parent should tell their child about the limits of legal speech at their schools on the topic of gender identity or sexual orientation under the Final Rule.”
Perhaps most anger-inducing was the discussion regarding harms against females. Plaintiffs claimed that DOED failed to consider or give weight to the harms faced by females who had to share intimate spaces with males.
DOED responded that it gave ample consideration and simply found that there was no evidence of risk to female students in having to share bathrooms, locker rooms, showers, and overnight accommodations with males.
Broomes noted that during oral arguments DOED argued that transgender students are always harmed by not being able to use the facility they choose while female students are not harmed by having to share a shower with males.
The judge ruled that such a claim is not supported by evidence; by contrast, Rowland provided an affidavit saying that she was so afraid after she entered the girls’ bathroom and saw a male that she refused to use the bathroom at school, going nine hours each day without access. She also stated that she knew of males who did not identify as female entering the girls’ bathroom because they knew nothing would happen to them.
Broomes noted that in a different case, Tennessee cited “numerous instances of males attacking females in public restrooms that were designated for females only” yet DOED simply refused to address these instances.
Broomes also found that DOED does not permit any effort to validate that a person actually has gender dysphoria, making it very easy for a male to claim to identify as a female just to gain access to women’s facilities and see girls in various states of undress.
The injunction extends to schools in the states that joined the lawsuit as well as the school that Rowland attends. Also included are any schools attended by members of Young America’s Foundation or Female Athletes United, as well as the minor children of members of Moms for Liberty, as long as they are a member by July 15, 2024.
This represents the fourth time a federal judge has blocked the new Title IX rule.
On June 17, a federal judge enjoined the DOED from enforcing the rule in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia, while four days earlier, Louisiana, Montana, Mississippi, and Idaho obtained a separate injunction.
More than half of U.S. states have sued over the new rule, including Texas, which on June 11 obtained an injunction against changes the Biden administration initially made to expand Title IX guidance in 2021. Judge Reed O’Connor stated that allowing the DOED’s “unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress.”
Texas’s lawsuit against the final Title IX rule is still pending, but Texas Attorney General Ken Paxton has already ordered schools to ignore it. Without a specific or nationwide injunction, all other states will be required to implement the new rule by August 1.
{Published April 22, 2024} A set of radical changes to Title IX unveiled by the Biden administration this past Friday effectively redefines sex by expanding the measure to include sexual orientation and gender identity and by erasing due process rights for anyone accused of sexual harassment or sexual assault.
The new rules, which were laid out in a 1,577-page document seen here, will go into effect on August 1.
Title IX was first passed in 1972 as an amendment to the 1964 Civil Rights Act. Its stated purpose in the original legislation was to “prohibit discrimination based on sex in education programs and activities that receive federal financial assistance.”
Over the years, though, Title IX has been expanded and undergone several complex changes as a result of a series of court interpretations and executive rule-writing.
Under the new regulations announced Friday, Title IX now “protects against discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics.”
That means that the LGBTQ community will be a protected class under Title IX, and men who identify as women will have the same access to all sex-segregated facilities and opportunities as women. As a result, the new measure “may open the door to litigation if a school or university that receives federal funding refuses to allow students to access private spaces reserved for the opposite sex.”
According to Sarah Parshall Perry, senior legal fellow in the Heritage Foundation’s Edwin Meese III Center of Legal and Judicial Studies, any K–12 school or institution of higher education that receives federal funding, directly or indirectly, “would have to open girls’ bathrooms, locker rooms, housing accommodations, sports teams, and any other sex-separated educational program or offering to biological boys who claim to ‘identify’ as girls. Similarly, boys’ facilities would have to be accessible to biological girls who ‘identify’ as boys.”
One thing the new rule did not include was a proposal introduced in April 2023 that would overrule state laws that ban biological males who identify as women competing in women’s sports while also giving schools some ability to ban transgenders from competing in certain sports or competitions. That part of the new Title IX is not expected to be issued until after November’s election, according to reporting by the Washington Post.
The new Title IX rules are also likely to affect free speech rights, as well as parental rights. For example, the new rules expand harassment to include the use of sex and gender stereotypes; an example cited in the regulations says that the statement “girls should spend less time advancing in athletics and more time learning home economics” should be treated and disciplined as a form of harassment.
Moreover, by codifying gender identity, the new rules, are likely to incentivize and give schools the cover they need to punish and censor students who refuse to use another student’s preferred pronouns or who believe in the biblical and biological definitions of sex.
Moreover, Perry says that the new Title IX rules would “require K-12 schools to accept a child’s gender identity regardless of biological sex without providing any notice to, much less seeking the approval of, the child’s parents.”
Just as alarmingly, the new Biden rule will also mandate a return to how universities adjudicate accusations of sexual harassment and sexual assault involving students at higher education institutions.
This issue first came to the forefront in 2011 when the Obama administration issued its famous “Dear Colleague” letter, which expanded Title IX to address cases of sexual harassment between students, set up university-led tribunals, and lowered the burden of proof against those accused of sexual harassment.
Under this system, students were tried without the benefit of an attorney, the presumption of innocence, or the ability to cross-examine their accusers and access all evidence, among other constitutional protections. Between 2011 and 2021, hundreds of students filed suit against their schools and the Department of Education in state and federal courts, alleging their due process rights were violated and their lives ruined. Many have since prevailed.
The Trump administration under Education Security Betsy DeVos moved to undo the Obama-era rules by more narrowly defining sexual harassment and restoring due process rights for the accused. Among other things, the rule granted defendants “the presumption of innocence throughout the investigative process and the right to be told of all evidence against them,” as well as the right to “cross-examine the accuser through a lawyer.”
On Friday, the Biden administration revoked those changes by lowering the threshold for what counts as “sexual harassment”; expanding the jurisdiction of colleges and universities for cases of sexual assault that take place outside of campus grounds (and even beyond U.S. borders); and bringing back a sub-constitutional process that effectively grants rights to the accuser over the accused,
Under the new Title IX rules, colleges investigating cases of alleged sexual assault will no longer have to conduct live hearings that allow the accused the chance to cross-examine the person accusing them, and accused students will lose the right to hear all of the evidence that allegedly accuses them.
There also be a return to the “single investigator model,” which “allows a single administrator to investigate and decide the outcome of a case,” and to the standard of “preponderance of the evidence,” meaning that schools can condemn a student if only 51 percent of the available evidence inculpates them.
Those in favor of the Biden administration’s new regulations claim they will benefit survivors of sexual assault.
Tracey Vitchers of the organization It’s On Us said: “This new rule will ensure survivors no longer face retaliation from their institutions for reporting sexual harassment or live under a Title IX that privileges accused perpetrators over students who were sexually assaulted. With the updated regulations, students will have tools to hold their institutions accountable for failing to comply and violating their civil rights.”
Critics, however, say that the new regulations will destroy due process rights that offer critical protections to students accused of sexual assault. Under the 2011 Title IX rules put in place by the Obama administration, large numbers of students were falsely accused, leading to such unjust results as expulsion, suicide, and prison.
Inez Stepman, a writer for The Federalist, wrote on X that the new rules “reinstate Obama-era kangaroo court rules for men accused of sexual assault on college campuses that completely flout due process and make mere accusation the standard that can ruin young men’s lives”; “encourage universities to unconstitutionally curtail protected speech in the name of subjective offense and ‘harassment’”; and “empower schools to enforce rules like punishing children for using biologically incorrect pronouns.”
The Foundation for Individual Rights and Expression stated,
“America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding” due to the new rules….When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely. But the new regulations no longer require them to do so. Rather than playing political ping-pong with student rights, the Department of Education should recognize that removing procedural protections for students is the exact opposite of fairness.”
The rules will, no doubt, be challenged in court. State attorneys general, including for Tennessee and Louisiana, have already announced plans to sue, as has constitutional law firm Alliance Defending Freedom, which stated in a press release:
“The Biden administration’s radical redefinition of sex turns back the clock on equal opportunity for women, threatens student safety and privacy, and undermines fairness in women’s sports. It is a slap in the face to women and girls who have fought long and hard for equal opportunities. . . . Alliance Defending Freedom plans to take action to defend female athletes, as well as school districts, teachers, and students who will be gravely harmed by this unlawful government overreach.”
The new Title IX rules completely defeat Title IX’s original purpose: Defending women from discrimination.
Men cannot be women (and vice versa), and affirming this idea makes a mockery of a fundamental biblical truth, that God created humans as male and female (Genesis 1:27). No amount of medical treatment or regulatory coercion can change that basic gender binary.
Violating this truth bears painful consequences for women. Allowing men to invade women’s locker rooms, restrooms, and other private spaces is not just a violation of these women’s privacy — it is an invitation to sexual assault.
That is the ridiculous and tragic irony at the center of the Biden administration’s new regulations. Defenders of the newly revised Title IX claim that it will defend women and make it easier for female students to step up and hold accountable those who sexually assaulted them. But they conveniently ignore the fact that perverts will have an open door to come into women’s locker rooms and gawk at them as they undress.
How would a survivor of sexual assault feel having such a disturbed individual waltz into a locker room, smugly knowing that he is defended by Title IX as long as he claims that he goes by “she/her” pronouns?
Tragically, the Biden administration’s actions on Title IX will continue giving momentum to toxic gender ideology. Expect to see the continual erasure of women and femininity, as more activists will insist on men’s rights to invade women’s spaces and nonsensical terms like “pregnant people” will continue to proliferate as the new Title IX regulations grant legitimacy to the idea that men and women do not exist but are only on an always changing spectrum.
The regulations are also harmful to men, as well as to women, robbing them of due process rights and making it much more likely that their college careers and reputations could be upended, thanks to a labyrinth of ever-changing expectations, cultural norms, and acceptable language and beliefs. Blaming someone of sexual assault or harassment is a serious accusation that could ruin their life, seeing them expelled from school and carrying the stain of that accusation for the rest of their lives. Nuking due process rights has already been a disaster for innocent men — and will be again under these new guidelines, with a lot more students of both sexes likely to be falsely accused and see their cases unfairly adjudicated.
The White House’s actions go against common sense, women’s safety, and privacy, as well as due process protections. The only hope is that the courts will step in and recognize this as not just a violation of the separation of powers but also an egregious offense against human dignity and the rights of the accused.
At this juncture, it appears that Christian schools like Liberty University have a religious liberty exemption to at least some of the new regulations. But there has already been at least one suit filed challenging this exemption in recent years. That case, Hunter v. U.S. Department of Education, brought by the Religious Exemption Accountability Project (REAP) on behalf of LGBTQ students enrolled at Christian schools, was dismissed in early 2023 by a U.S. District Court in Oregon. However, in the wake of the new Title IX rules, there will, no doubt, be more lawsuits.
Given where we’re at culturally and legally, the current Title IX, if it remains in place, has the potential to impact every school, family, and student. As such, those who have students, or who are students, in K-12 or higher education environments must take the time to do their research to better understand the risks and impact this will have on their individual circumstances and then to make appropriate, possibly difficult decisions.
To that end, stay tuned to the Freedom Center as we will be delving more deeply into this issue in the coming weeks and providing additional information on what the new Title IX means for students and families.
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