The Biden administration’s rewrite of regulations for Title IX, the nation’s landmark law prohibiting sex discrimination at federally funded schools, has drawn at least eight lawsuits since its release in mid-April that have complicated its path to taking effect.
The Title IX revision expands the scope of the law’s prohibition on sex discrimination so it also applies to discrimination based on sexual orientation and gender identity. It also streamlines processes schools use to investigate and respond to complaints of Title IX violations and directs them to use a “preponderance of the evidence” standard to evaluate sexual harassment, assault, and discrimination claims rather than a higher legal threshold.
The Title IX rewrite swiftly drew legal challenges from Republican-led states, and has led to a fractured legal landscape in which the new rule won’t take effect in all states, nor even at all schools and colleges in the states where judges haven’t put the rule on hold.
According to an Education Week analysis:
- The Biden administration’s Title IX rewrite has drawn at least eight lawsuits.
- 26 states have signed onto the lawsuits.
- The rule is on hold in 26 states.
In addition to the 26 states, one school district, two students, and five conservative advocacy organizations have signed onto the legal challenges. All eight of the lawsuits filed resulted in injunctions putting the rule on hold in the states mounting legal challenges in time for the Aug. 1 effective date of the new regulations. The injunctions temporarily block the rule while the cases play out in court.
The rule is also blocked from taking effect at any school attended by a child of a member of Moms for Liberty, a conservative organization active in school board politics, or at any school attended by members of the Young America’s Foundation, an organization for young conservatives largely at colleges and universities, and Female Athletes United, a conservative advocacy organization. In total, that means the rule is blocked from taking effect in over 400 K-12 schools in 44 states and the District of Columbia, including liberal-leaning states that haven’t signed onto lawsuits against the rule like California, Colorado, and Massachusetts.
The lawsuits all take issue with the Education Department’s decision to expand the scope of sex discrimination to include “gender identity.” They argue that “gender identity” is too vague a term to be included in regulation. The lawsuits argue the Education Department is forcing some students and staff to go against their beliefs by allowing transgender and nonbinary students to use bathrooms and locker rooms that align with their gender identity.
To justify its expanded interpretation of Title IX, the Education Department used the U.S. Supreme Court’s 2020 Bostock v. Clayton County, Ga. decision, which said employers cannot discriminate against employees on the basis gender identity or sexuality under federal employment law. However, many of the lawsuits take issue with that interpretation, arguing that Bostock doesn’t apply to Title IX.
Seven of the eight lawsuits argue that the Education Department’s revision also opens the door to inequality in school athletics by giving transgender girls access to girls’ sports. The Education Department said the Title IX rewrite does not apply to athletics. Last year, the department issued a separate proposed rule that addresses how the Title IX revision applies to sports, specifically transgender athletes’ participation in school sports, but hasn’t said when it plans to finalize it.
Two federal appeals courts have refused to stop injunctions blocking the rule, so the Biden administration on July 22 asked the U.S. Supreme Court to partially set them aside so parts of the Title IX rule that states haven’t challenged—such as efforts to streamline the process schools use to investigate Title IX complaints—can take effect under the temporary orders blocking them. The Supreme Court, however, didn’t act on the administration’s request before the Aug. 1 effective date.
Here are the details on the eight lawsuits and where they stand.
