Department of Education asks the Supreme Court to partially lift Title IX injunctions, even as another court blocks the new rule

[UPDATE] The Biden administration earlier this week petitioned the Supreme Court to restore some aspects of its Title IX alterations, even as yet another court issued an injunction on Wednesday that blocks the entire rule from taking effect in several more states.

After courts issued injunctions covering 15 states, as well as schools and members of three different organizations that had challenged the rule, the Biden administration appealed to the federal appeals courts, where they argued that parts of its Title IX rule changes should be permitted to go into effect while litigation proceeds.

The U.S. Court of Appeals for both the Fifth and Sixth Circuits both refused, saying that the Department of Education’s redefinition of “discrimination on the basis of sex” to encompass gender identity permeated the entire rule change and could not be extricated from it. As a result, both appellate courts left in place the injunctions in their entirety.

On Monday, July 22, U.S. Solicitor General Elizabeth Prelogar filed two petitions with the Supreme Court, asking it to review the injunctions and allow portions of the rule overhaul to go into effect.

She claimed that the injunctions on the entire new rule blocks “the [Education] Department from implementing dozens of provisions of an important Rule effectuating Title IX, a vital civil rights law protecting millions of students against sex discrimination.”

On Tuesday, the High Court asked Tennessee and Louisiana — the lead states in the related injunctions that are being challenged — to respond to Prelogar’s filings by noon on Friday, July 26.

But a day after that, the U.S. District Court for the Eastern District of Missouri issued yet another injunction in response to a legal challenge, this one blocking the new Title IX rule from taking effect in six more states: Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota.

This latest ruling is at least the sixth injunction granted against the Department of Education over its new Title IX mandate.

Education officials have argued that under the Supreme Court’s decision in Bostock v. Clayton County, gender identity and sexual orientation are included in sex discrimination. Yet that decision dealt with employment discrimination under Title VII and the Supreme Court expressly stated that its decision did not address Title IX.

Similar to other judges, Clinton-appointed Judge Rodney W. Sippel found that the new Title IX rule undermines Congress’s original legislative intent to protect women against discrimination on the basis of their biological sex and that there are substantial differences between Title VII and Title IX.

He wrote,

“Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.

After due consideration of all the foregoing authorities in light of the aforementioned differences between the two statutes, Bostock’s express disavowal to bathrooms or locker rooms or other statutory schemes, and in the absence of controlling authority, the Court concludes that plaintiffs have met their preliminary burden of demonstrating a fair chance of prevailing on their argument that Bostock should not apply to Title IX and that the Department exceeded its statutory authority and/or acted contrary to law in redefining ‘on the basis of sex’  for purposes of Title IX.”

Sippel cited the decisions of other courts to enjoin the entirety of the rule but, like those same courts, declined to issue a nationwide injunction.

The Biden administration’s final rule, which is set to go into effect on August 1, is currently blocked in 21 states.

One injunction covers Louisiana, Montana, Mississippi, and Idaho.

Another injunction blocks the rule in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.

A third injunction blocks the rule in Kansas, Alaska, Wyoming, and Utah, as well as in various schools where children of the members of additional plaintiffs Moms for Liberty, Young America’s Foundation, and Female Athletes United attend.

Two other injunctions halted the rule from taking effect in Texas.

Additional legal challenges at the district court level are still pending.

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ORIGINAL STORY

{Published on 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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