“No basis in reality”: Two appellate courts uphold injunctions on radical Title IX rewrite

[UPDATE] Two Circuit Courts of Appeal have denied the Department of Education’s request to lift parts of injunctions halting its Title IX alterations.

Under the new rule finalized in April, schools and universities receiving federal funds are required to implement its 400 pages of regulations by August 1. The rule expands Title IX’s reach to cover not just women but those claiming to be women. As such, it mandates, among other things, that transgenders be allowed to use the bathroom, locker room, and dormitories of their choice.

So far, every judge that has heard a challenge to the new rule has blocked its implementation, but the government has appealed.

On July 17, the U.S. Court of Appeals for the Sixth Circuit refused to lift the injunction blocking the new Title IX rules from taking effect in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. The Department of Education claimed that even if parts of the rule were blocked by the preliminary injunction, the district court should not have blocked the whole rule change.

The Sixth Circuit, however, agreed with the district court. Particularly, it agreed that the government had exceeded its authority in changing the definition of “discrimination on the basis of sex” to include gender identity, sexual orientation, and pregnancy status.

The court rebuffed the Education Department’s reliance on the Supreme Court’s decision in Bostock v. Clayton County regarding employment discrimination under Title VII as basis for altering Title IX.

“As many jurists have explained, Title VII’s definition of discrimination, together with the employment-specific defenses that come with it, do not neatly map onto other areas of discrimination,” the court reasoned. It continued,

“Title VII’s definition of sex discrimination under Bostock simply does not mean the same thing for other anti-discrimination mandates, whether under the Equal Protection Clause, Title VI, or Title IX. As to the relationship between Title VII and Title IX, the statutes use materially different language: discrimination ‘because of’ sex in Title VII and discrimination ‘on the basis of’ sex in Title IX. In addition, the two statutes serve different goals and have distinct defenses. For these reasons, ‘it does not follow that principles announced in the Title VII context automatically apply in the Title IX context.’”

Also on Wednesday, the U.S. Court of Appeals for the Fifth Circuit declined to lift any part of an injunction granted to the states of Louisiana, Montana, Mississippi, and Idaho.

The Fifth Circuit wrote that “granting a partial stay here would involve this court in making predictions without record support from the DOE about the interrelated effects of the remainder of the Rule on thousands of covered educational entities. This is especially problematic when the DOE is asking this court to maintain, on a temporary basis, tangential provisions that might or might not have been formulated in the absence of the heart of the Rule… Even more problematic would be our judicial rewriting of the Rule on what may only be a temporary basis. That, too, is not this court’s job.”

The court noted substantial injury to schools that would be required to incur much cost and difficulty in training staff on the 400 pages of new regulations by the August 1 deadline. The schools would be required to do so with a rule that would only be partially intact and could soon be changed again by further legal proceedings.

The decisions come just after other district courts granted injunctions blocking the Title IX changes.

Two federal judges issued injunctions on the same day a week ago against the Title IX rewrite that prevents its enforcement in Texas.

On July 11, Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo and Judge Reed O’Connor of the U.S. District Court in Forth Worth both ruled that the Biden administration’s effort to expand Title IX to include gender identity upended the purpose of the original 1972 statute.

The State of Texas was the lead plaintiff challenging the Title IX rewrite in the case before Kacsmaryk.

Kacsmaryk issued an injunction for the whole state of Texas and ruled that the Title IX changes violated the Administrative Procedures Act, impose a “hostile environment harassment” that will chill speech by students and professors, require coverage for abortions in student insurance plans, and “eviscerates procedural safeguards for the Title IX grievance process.”

He added,

“The Final Rule inverts the text, history, and tradition of Title IX: the statute protects women in spaces historically reserved to men; the Final Rule inserts men into spaces reserved to women.

Before its enactment, nearly thirty-four percent of working women lacked high school diplomas and only seven percent of high school varsity athletes were women. Roughly fifty years later, only six percent of working women lack high school diplomas and forty-three percent of high school varsity athletes are women. In short, Title IX is succeeding: women and girls across America now benefit from opportunities to pursue advanced education, attend college, and develop athletic skills.

That is because Title IX recognizes the ‘enduring’ differences ‘between men and women.’”

Kacsmaryk also ruled that the government’s usage of Bostock v. Clayton County to justify its definition of sex discrimination to include gender identity was incorrect.

In Fort Worth, O’Connor issued an injunction requested by Carroll Independent School District, writing,

“The Final Rule undermines fifty years of progress for women and girls made possible by Title IX,” he wrote. “Worse still, the Final Rule endangers not only women and girls, but all students. Just like the subjective nature of ever-changing gender identity, the Department of Education picks and chooses which ‘niche’ group to prioritize regardless of the consequences for everyone else and regardless of its authority.”

He added, “Functionally displacing Title IX’s understanding of ‘sex’ while refusing to define it, the Department of Education’s Final Rule has ‘no basis in reality.’”

So far, the new rule changes have been blocked from being enforced in 15 states. In addition to the previously mentioned injunctions, a federal judge also granted one in a consolidated case brought by Kansas, Utah, Alaska, and Wyoming.

More than half of states, along with schools, civil rights groups, and other organizations, have challenged the new rule in court, but several other cases 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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