By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, staurows@ithaca.edu
Three months ago, the United States District Court for the Northern District of Texas, Fort Worth Division concluded that the United States Department of Education (USDOE) exceeded its authority when it issued three guidance documents in 2021 that clarified Title IX protections for LGBTQ+ students. The Court further ruled that the USDOE failed to extend an opportunity to the states to provide feedback on a Notice of Interpretation that reversed a decision made during the Trump Administration in 2017 to withdraw Title IX protections for transgender students.
Background
In June of 2023, the State of Texas (Texas) filed a lawsuit against two federal agencies that have the authority to enforce Title IX, the USDOE and the United States Department of Justice (USDOJ) as well as the secretaries who serve as heads of those agencies, respectively Miguel Cardona and Merrick Garland in their official capacities. Texas implored the Court to vacate three Title IX guidance documents issued by the USDOE in 2021, including a Notice of Interpretation, a Dear Educator Letter, and a Fact Sheet (referred to as Guidance Documents). Texas asserted that the USDOE guidance given to school administrators about Title IX’s protections of LGBTQ+ students was wrongly predicated on a 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, wherein employees were found to be protected under Title VII of the Civil Rights Act of 1964 from discrimination because of sexuality or gender identity. Texas further argued that the Guidance Documents, as substantive or legislative rules, had been issued by the USDOE without adherence to proper notice-and-comment.
The Guidance Documents challenged by the State of Texas are part of a series of documents that have been issued under several presidential administrations, reflecting a history of contested positions on the appropriate application of civil rights laws to the expanse of Title IX’s sex discrimination protections. Guidance issued during the Obama Administration in 2016 that clarified that sex discrimination under Title IX prohibited discrimination based on gender identity was reversed by officials in the Trump Administration in 2017. Following the 2020 U.S. Supreme Court ruling that held in Bostock that Title VII prevented discrimination based on sexual orientation or gender identity in an employment setting, the USDOE under the Trump Administration issued a clarification that the ruling did not require that Title IX be interpreted in a similar manner.
By 2021, following an Executive Order issued by President Joseph Biden, the USDOE again took the position that discrimination based on sexual orientation or gender identity constituted sex discrimination under Title IX, the foundation of which relied on Bostock. The Guidance Documents then flowed from that position. According to the State of Texas, the interpretation of what constitutes sex discrimination as articulated in these documents collides with Texas laws and policies.
In determining that the Guidance Documents were contrary to law, the Court disagreed with the Defendants and found that the documents “directly clash with Title IX and its implementing regulations” and “…(1) flout Title IX’s text, (2) were made without the legislative authority to rewrite Title IX to decide major questions, and (3) lack the clear-statement rule required by the Spending Clause of the Constitution” (State of Texas v. Cardona et al., 2024, p. 36, para. 1).
The Court took issue with the USDOE’s interpretation of discrimination based on gender identity as the same as sex, viewing such a position as an effort on the part of the USDOE to “rewrite clear statutory terms to suit its own sense of how the statute should operate” by establishing that gender identity is distinct from biological sex. In effect, because the law was written in 1972, the term “on the basis of sex” carries an unambiguous binary meaning, referring only to a person’s biological sex.
The Court further found, citing the Major Questions Doctrine, that the USDOE had exceeded its authority by effectively deciding a major policy question by offering guidance that discrimination on the basis of sex included discrimination based on gender identity. The Court asserted that those kinds of decisions are expressly reserved for action by the U.S. Congress and not a federal agency.
The Immediate Future
This case has been viewed as a harbinger of what may happen in seven lawsuits filed by 26 Republican attorney generals along with numerous conservative organizations challenging the Final Title IX Regulation issued by the Biden Administration in April of 2024. As of this writing, the new Title IX rule is temporarily on hold in 26 states (Knott, 2024).
References
Knott, K. (2024, August 1). How Biden’s Title IX Reform Became a Legal Morass. InsideHigherEd.com. https://www.insidehighered.com/news/government/2024/08/01/how-legal-challenges-tied-title-ix-26-states
The State of Texas v. Cardona, Civil Action 4:23-cv-00604-O (N.D. Tex. Jun. 11, 2024). https://casetext.com/case/states-v-cardona
The State of Texas v. Cardona, Civil Action 4:23-cv-00604-O (N.D. Tex. August 5, 2024). https://casetext.com/case/states-v-cardona
