A federal judge in Texas struck down a set of three-year-old U.S. Department of Education guidance documents that told schools the agency would use Title IX, the federal law prohibiting sex discrimination, to protect students from discrimination based on sexual orientation and gender identity.
The practical effect of the June 11 ruling from U.S. District Judge Reed O’Connor is limited to schools in Texas, to which the documents will no longer apply. It has no direct effect on the Education Department’s new Title IX regulation issued in April, which explicitly bars schools from discriminating based on sexual orientation and gender identity.
But the ruling could have broader reverberations in a prolonged legal battle over Title IX as Republican states fight the new regulation in court. O’Connor, after all, ruled specifically that the administration had no authority to expand those protections without congressional approval.
The department issued the guidance at the center of the Texas case in June 2021, nearly three years before it finalized the new Title IX rule. The guidance was not legally binding, but districts often follow Education Department guidance to avoid legal trouble with the federal government.
Texas Attorney General Ken Paxton, whose office challenged the guidance documents, celebrated the ruling, saying in a statement that “Joe Biden’s unlawful effort to weaponize Title IX for his extremist agenda has been stopped in its tracks.”
An Education Department spokesperson said the agency “stands by” its new Title IX regulations, “which were crafted following a rigorous process to give complete effect to the Title IX statutory guarantee that no person experiences sex discrimination in federally-funded education.”
In his opinion issued Tuesday, O’Connor said the Education Department “engaged in unlawful agency action taken in excess of [its] authority, while failing to adhere to the appropriate notice and comments requirements when doing so.”
The department wasn’t merely using the guidance documents to remind schools of their existing obligations under Title IX, he wrote. Instead, it “imposed new duties” on them. As a result, he said, the department should have treated the guidance as a regulation, and gone through the legally prescribed process for developing those.
Even if it had, however, O’Connor cast doubt on the department’s authority to prohibit discrimination on the basis of gender identity under Title IX—a legal reading that could have a bearing on the multiple lawsuits pending against the April rule change.
Consulting dictionary definitions for the word “sex,” O’Connor wrote, “the court finds that the Guidance Documents’ mandate that [schools] refrain from discrimination based on gender identity—by treating people consistent with their subjective gender identities—is directly at odds with Title IX.”
“If Congress cannot yet decide whether or not it wants to expand Title IX’s reach, there is zero reason to believe the Department may do so,” O’Connor wrote in another section of the opinion.
Why did Texas sue over the Title IX guidance?
After Congress passes a law, the federal agency charged with implementing it commonly develops regulations, or rules, that include more specifics about how the agency will apply and enforce the law. Agencies must follow a legally prescribed process in developing those, which includes issuing public notices of proposed and final rules and providing the public with an opportunity to comment on them.
Sometimes, agencies develop non-binding guidance to further explain how they intend to interpret and enforce federal laws.
The guidance at the center of the Texas case included a notice of interpretation, a “dear educator” letter, and a fact sheet the Education Department issued in June 2021. The three documents outlined the Biden administration’s interpretation of Title IX following the U.S. Supreme Court’s ruling in Bostock v. Clayton County, Ga., which said that employers cannot discriminate against employees based on sexuality and gender identity.
They instructed school districts, colleges and universities, and other education programs that receive federal funds to interpret Title IX to prohibit discrimination on the basis of sexual orientation and gender identity.
In the lawsuit, Paxton argued the documents were “not in accordance with the law” and were “in excess of statutory authority” because they applied employment law to Title IX and were “substantive or legislative rules that required notice-and-comment rulemaking.”
The final Title IX rule revision that incorporates the content of the guidance documents is the subject of at least seven lawsuits seeking to prevent it from taking effect, including one led by Texas. Judges haven’t yet ruled in any of those cases, which claim the rule was an overreach of authority and object to the inclusion of gender identity in definitions of sex discrimination.
The Education Department’s office for civil rights expects schools to begin following the Title IX revision in August unless a court issues an injunction that blocks the rule from taking effect.
Biden’s Title IX rule not in the clear—yet
The Texas case is in large part about how federal agencies, like the Education Department, change policy, said Derek Black, a constitutional law professor at the University of South Carolina who specializes in educational law and policy.
“The question becomes whether a ‘Dear Colleague’ letter or some other form of agency information is sort of a bypass of the rulemaking process, which is to say you’re really changing the rules without going through the rule-changing process,” Black said.
In this instance, the court is saying, “you guys issued this guidance, and we don’t think it’s enforceable because it’s really a rule change and you didn’t go through the rule change procedures,” he said.
The Education Department issued the three guidance documents at the center of the Texas case without any notice or public comment process. The Biden administration’s final Title IX rule did go through official rulemaking, starting with a notice of the proposed change in June 2022 and a public comment period during which the agency received over 240,000 comments before it issued the final rule nearly two years after the initial notice.
O’Connor, an appointee of former President George W. Bush, is the second federal judge to invalidate the Title IX documents. In 2022, a federal judge in Tennessee found the Education Department should have used the formal rulemaking process when issuing the guidance and nullified it for schools in the 20 states that participated in the legal challenge. But that judge, Charles Atchley, an appointee of former President Donald Trump, didn’t address whether the department’s interpretation of “sex” to include “gender identity” was in accordance with Title IX.
In the Texas ruling, O’Connor wrote that the Biden administration’s use of the Bostock Supreme Court case to justify a prohibition on discrimination based on gender identity and sexual orientation under Title IX—which it also did in issuing the April rule—was invalid. Noting that Bostock was a case about employment law and not Title IX, O’Connor wrote, “the workplace is not the same as the educational environment.”
"[W]hat counts as discrimination under one statute is not necessarily discrimination under the other,” he wrote.
Another potential problem for the Title IX revision is an expected Supreme Court ruling that could reduce the legal weight of federal agency regulations, such as the Title IX revision, according to Black, the University of South Carolina law professor.
In 1984, the Supreme Court ruled in Chevron v. Natural Resources Defense Council that courts should defer to a federal agency’s interpretation when a federal statute is ambiguous or unclear.
A majority of Supreme Court justices appeared in favor of overturning that principle, known as Chevron deference, during oral arguments earlier this year. That would give the Biden administration’s Title IX rule a weaker legal standing in court.
That ruling is likely to have more of an impact on the Title IX rule’s future than the Texas case, Black said.
“If the court changes the Chevron deference, that means the agency would have a higher bar to pass in terms of demonstrating the validity of the regulations,” he said.
Even then, it would be hard to imagine the Supreme Court ruling that the definition of sex discrimination it applied in Bostock v. Clayton County, Ga., wouldn’t also apply to Title IX, Black said.
“I think that’s very persuasive on this narrow question of what sex means,” he said.
What should schools do when it comes to Title IX?
The Texas case is only the most recent major ruling in a case related to Title IX. It doesn’t change the fact that schools in Texas and other states that are challenging the rule are in a tricky situation, sometimes balancing conflicting state and federal laws.
In a handful of Republican-led states, state officials have instructed districts not to comply with the new federal rule. And in the U.S. Senate, Republicans have launched an effort to overturn it.
The best thing for K-12 administrators is to prepare to adopt the final Title IX rule by Aug. 1, according to Title IX lawyers. That way, schools are prepared for any outcome.
“You’re not going to get another ramp-up period,” said Holly McIntush, a lawyer with the Texas law firm Thompson & Horton LLP who specializes in Title IX compliance. “So [schools] need to take advantage of the one they have now.”
Schools should consult with their legal counsel and school boards to make sure they’re prepared for any contingency and meet with the staff, parents, and other community members so they’re aware of how things might change, McIntush said.
