Republican-led states are suing the Biden administration and advising schools to ignore the new federal Title IX changes that expand sex discrimination protection to students who identify as the opposite sex.
The rule change, published on April 19, formalizes the Department of Education’s redefinition of the meaning of sex to include gender identity.
The changes, which go into effect on Aug. 1, give males identifying as female the right to use female restrooms and locker rooms and join female-only organizations. Under the new rule, “harassment” can include the use of biologically accurate pronouns.
Title IX is a landmark 1972 civil rights law meant to protect women from discrimination based on sex in federally funded educational programs and provide them equal opportunities.
Schools and colleges that fail to comply with Title IX stand to lose federal dollars.
On April 30, 15 states filed lawsuits accusing the federal government of overreach and changing the nature of the original law.
“I’m going to be really clear. President Biden deciding to rewrite Title IX is one of the most radical and illegal moves we’ve ever seen from the federal government,” Oklahoma State Superintendent Ryan Walters said at a state board meeting in April.
“It’s an attack on our states. It’s an attack on our families. And it’s an attack on our young women and girls.”
In a letter to President Biden, Texas Gov. Greg Abbott rebuked the president’s “abuse of authority.”
“I am instructing the Texas Education Agency to ignore your illegal dictate,” Mr. Abbott, a Republican, wrote.
Federal Versus State
The Biden administration heralded the rule change as inclusive and a matter of fairness for all students.“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” Secretary of Education Miguel Cardona said in an April statement.
“These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”
Louise Melling, deputy legal director for the American Civil Liberties Union, applauded the definition change to include young people who identify as transgender: “At a critical time, when trans youth are being used by politicians as a punching bag, the final rule issues an important reminder that schools cannot discriminate based on gender identity, transgender status, or sexual orientation.”
On the other hand, the rule changes clash with laws in at least 11 conservative states that prohibit gender-confused males from using female facilities.
Laws requiring students to use the restroom corresponding to their sex are on the books in Alabama, Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma, and Tennessee. Utah’s new bathroom law will go into effect on July 1. Idaho’s law was placed on hold by a judge.
Some Republican-led states also require schools to notify parents if their child identifies as transgender, and some have banned schools from forcing staff to use pronouns preferred by transgender students.
The federal rule revision appears to allow parental notification, stating that “nothing in these final regulations prevents a recipient from disclosing information about a minor child to their parent who has the legal right to receive disclosures on behalf of their child.”
‘Nowhere Near Legal’
Kentucky, Ohio, Virginia, West Virginia, Tennessee, and Indiana, sued the Biden administration on April 30, making them the latest to fight back.“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti, a Republican, said in a statement on the lawsuit.
“In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
The lawsuit, filed in the U.S. District Court for the Western District of Louisiana, accused the Education Department of illegally forcing an ideology onto the youth of the United States.
It called the rule change “a naked attempt to strongarm our schools into molding our children into the current federal government’s preferred image of how a child should think, act, and speak.”
“The final rule is an affront to the dignity of families and school administrators everywhere, and it is nowhere near legal,” the lawsuit stated.
The case will be heard before the U.S. District Court for the Northern District of Texas Amarillo Division.
Texas Attorney General Ken Paxton said the Biden administration has not only broken the law but also interfered with Texas sovereignty.
“The Biden Administration has exceeded its authority and radically distorted the meaning intended by Congress when the law was made,” Mr. Paxton said in a statement.
The changes would force “unscientific gender ideology” on schools and colleges, he said.
Alabama, Florida, Georgia, and South Carolina joined with the Independent Women’s Law Center, Parents Defending Education, and Speech First in a lawsuit filed in the U.S. District Court for the Northern District of Alabama.
Endangering Women’s Sports
Riley Gaines, an Independent Women’s Forum ambassador, announced her organization’s lawsuit on social media.
Ms. Gaines, who was a college swimmer at the University of Kentucky, was thrust into the limelight in recent years for speaking out against unfair competition from men competing in women’s sports.
Ms. Gaines tied for fifth place with Lia Thomas, a male swimmer at the University of Pennsylvania who identified as a female, in the women’s 200-yard freestyle at the 2022 NCAA Women’s Swimming Championship.
Ms. Gaines spoke out about the disadvantage she and other female swimmers faced when competing against the 6-foot-4-inch male swimmer and the unfairness she experienced when the NCAA gave the only fifth-place trophy to her transgender opponent.
However, the transgender swimmer defended his participation in women’s sports.
“Trans women competing in women’s sports does not threaten women’s sports as a whole,” he said on ESPN. “Trans women are a very small minority of all athletes. The NCAA rules regarding trans women competing in women’s sports have been around for 10-plus years. And we haven’t seen any massive wave of trans women dominating.”
After hearing of the administrative rule change last week, Ms. Gaines lamented the idea that sex and gender ideology had been made equivalent.
“Men can take academic and athletic scholarships from women,” she wrote in a post on social media platform X.
The post also pointed out that students would be forced to use a transgender student’s preferred pronouns.
“If the guidelines above are ignored or even questioned, then you can be charged with harassment,” she wrote.
Some conservatives have said the rule is already written to include athletics, which will allow males to compete in female sports.
Although the Biden administration’s rule change didn’t expressly address transgender athletes, for now, it is expected to do so in the near future. Critics contend the delay is an election-year maneuver to shield President Biden from an unpopular edict.
“I would just argue that it’s certainly not the will of the American people. And it’s definitely not safe,” Jonathan Butcher, a fellow at the Heritage Foundation’s Center for Education Policy, said.
Protecting women’s sports became a rallying cry for conservatives as more males identifying as female participated in female sports, taking scholarships and honors from girls and women and injuring them during athletic events.
State laws banning males from participating in women’s and girls’ sports have been adopted by some two dozen states.
Bureaucratic Lawmaking
All four lawsuits claim the rule change violates the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations.Mr. Butcher said he believes this could be yet another blow to the administrative state should the case make it to the Supreme Court, given its previous ruling.
Although the Supreme Court hasn’t taken up cases involving transgender athletes, it has taken up issues concerning bureaucratic power.
In 2022, the Supreme Court ruled in West Virginia vs. EPA that the Environmental Protection Agency lacked the authority to impose greenhouse gas emission regulations on electricity producers.
The EPA tried using the Clean Air Act to force power plants to shift from coal to wind and solar in that case.
Many court-watchers have said the high court is ready to overturn the Administrative Procedures Act, Mr. Butcher said.
Jonathan Hullihan, an attorney for Citizens Defending Freedom (CDF) in Texas, told The Epoch Times that the administration is attempting to usurp the power of Congress.
Changing the meaning of sex, and thereby changing the meaning of the law Congress passed, will affect almost every child in the United States, meaning it would fall under the major questions doctrine, he said.
The major questions doctrine is a principle applied in U.S. administrative law cases and states that courts will presume that Congress does not delegate issues of major political or economic significance to executive agencies.
“This is about the separation of powers,” Mr. Hullihan said.
He said the Biden administration is trying to apply the Supreme Court’s 2020 decision in Bostock v. Clayton County to Title IX.
Bostock does not extend to Title IX, Mr. Hullihan said.
That opinion dealt with Title VII of the Civil Rights Act of 1964. The high court ruled that employers can’t discriminate based on homosexuality or gender identity status.
Title IX even has “cutouts” that allow for segregation based on biological sex, such as locker rooms and restrooms designated for females, he said.
Mr. Hullihan said Congress needs to reassert its authority over the administrative state.
“Congress needs to protect their institution because that protects the Constitution,” he said.
