The new Title IX rule takes effect amid mass confusion: Here’s the latest on the still-evolving legal landscape

[UPDATE] The radical new Title IX rule put in place by the U.S. Department of Education officially went into effect yesterday, August 1.

The rule rewrites the 52-year-old civil rights law that protects female students against discrimination by extending those same protections to transgender students.

The changes require schools to let students use the bathroom or locker room according to their gender identity and share overnight lodgings according to their gender identity, meaning that girls and women will be forced to share their private spaces, including dorms and hotel rooms, with biological males. Schools must also re-implement the Obama-era sexual harassment and assault investigative measures that subject those accused to university tribunals without basic due process protections. And colleges are required to cover abortions in their student insurance plans.

Schools that don’t comply will face federal investigations and severe financial consequences.

The April 19 release of the 1,577 pages of regulations governing this new reality led to a flurry of legal challenges by more than 20 states, numerous schools, and several parent and student groups. By late July, a number of injunctions had been issued that blocked the new rule from taking effect in 21 states and some school districts (even if they are located in a state that adheres to the new rules).

Adding to the chaos and confusion, however, was the fact that other courts waited until nearly the last minute to weigh in on the constitutionality of the measure, the result being that by August 1, five more states had been given a temporary reprieve from having to implement the new rules.

On July 31, the U.S District Court for the Western District of Oklahoma halted enforcement of the changes for the state of Oklahoma. Judge Jodi Dishman ruled that the Education Department’s changes to Title IX exceeded its authority, violate the First Amendment and the Spending Clause, and likely violate the Major Questions doctrine.

Dishman wrote that, overall, the rule changes violate the legislative purpose of Title IX, which was to prohibit discrimination against women. Dishman ruled that “Leading up to Title IX’s passage, all relevant congressional statements, hearings, and reports focused on discrimination women faced in education…This purpose is confirmed by Title IX’s text. Yet the Final Rule elevates gender identity and its accompanying protections above that of biological sex—i.e., women. Such a contradiction of Title IX’s text and an erosion of its purpose cannot be permitted absent congressional action.”

Dishman remarked that “almost every district court judge” that has ruled on a preliminary injunction in the numerous cases challenging the Title IX changes has granted one.

The one judge who didn’t rule against the Department of Education was U.S. District Court Judge Annemarie Carney Axon. On Tuesday, July 30, she denied the request for an injunction from Alabama, Florida, Georgia, and South Carolina.

Axon seemed to take issue more with the technical execution, or lack thereof, of the states’ complaint, chastising them for not thoroughly and carefully explaining their arguments, than with the actual question of whether the Department of Education’s changes are unlawful.

“‘Preliminary injunction motions are often, by necessity, litigated on an undeveloped record. But an undeveloped record…makes it harder for a plaintiff to meet his burden of proof…’ This case is a clear example of such problems,” Axon wrote. “The evidentiary record is sparse, and the legal arguments are conclusory and underdeveloped. The court therefore must ultimately conclude that Plaintiffs have failed to ‘clearly’ establish that they are entitled to the ‘extraordinary and drastic remedy’ that is a preliminary injunction.”

She acknowledged, however, that “at later stages in these proceedings, more carefully developed legal arguments and the benefit of a fuller evidentiary record might yield a different result.”

Steve Marshall, the attorney general for Alabama, the lead plaintiff in the case, argued on X,

“We are surprised by district court’s decision today to deny the State’s request to immediately halt Biden’s Title IX degradation. Fortunately, precedent is on our side. The 11^th Circuit Court of Appeals has been perfectly clear that when Congress used the word ‘sex’ to ensure equality for women under Title IX, it meant ‘sex’ not gender identity, and that Title IX emphatically does not require schools to open up women’s bathrooms, locker rooms, and showers to men. As such, we have already appealed this decision and will seek emergency relief.”

Marshall was referring to the 11th Circuit’s ruling in Adams ex rel. Kasper v. School Board of St. Johns County, wherein the court ruled that sex-segregated bathrooms and locker rooms do not violate the Equal Protection Clause of the 14th Amendment nor Title IX. In that case, a transgender student challenged a school district’s bathroom policy, claiming that it discriminated against transgender students.

And sure enough when Alabama appealed Axon’s ruling to the 11th Circuit, the court immediately granted an emergency injunction prohibiting enforcement of the Title IX changes in Alabama, Florida, Georgia, or South Carolina until the judges can hear oral arguments.

In addition, approximately 70 colleges and universities in the four states will not be required to comply with the Title IX changes, thanks to an injunction issued by U.S. District Court Judge John Broomes in a different suit to members of the Young America’s Foundation and Female Athletes United. All colleges attended by members of these organizations are not required or allowed to follow the new rule.

So to sum up: As a result of this 100-day flurry of legal activity, 26 states are currently enjoined from implementing or enforcing the new Title IX rules, but, due to the Broomes injunction, so too are at least 1,118 schools and higher education institutions across the country where members (or the children of members) of Moms for Liberty, Young America’s Foundation, and Female Athletes United are enrolled.

To understand more about the details and implications of Title IX, check out our original article on the Title IX rewrite below.

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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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