New Title IX Rule on Gender Identity Now Blocked in 21 States

U.S. Department of Education building in Washington on July 6, 2023. (Madalina Vasiliu/The Epoch Times)

A federal judge has blocked new Title IX regulations in another six states, bringing the total number of states in which the U.S. Department of Education won’t be able to enforce the changes to 21.

The six new states are Arkansas, Iowa, Missouri, North Dakota, Nebraska, and South Dakota.

In his July 24 decision, U.S. District Judge Rodney Sippel of the Eastern District of Missouri granted a preliminary injunction to the states, finding that they have a “fair chance of prevailing” on their claims that the Education Department exceeded its authority in its attempt to expand the scope of the anti-discrimination law.

The new Title IX rule, which is set to take effect Aug. 1, declares that existing federal law against sex-based discrimination also prohibits discrimination based on sexual orientation and gender identity.

The rule does not address sex-separate sports teams, but it would apply to bathrooms, locker rooms, and shower areas, meaning that schools and colleges could lose federal funding if they require students to use the facilities corresponding to their biological sex.

It also expands the definition of “sexual harassment” to include addressing someone with a pronoun that aligns with their sex but conflicts with their preferred gender. Educators who don’t comply could be subject to Title IX investigation and potential discipline, even if complying would go against their religious or moral convictions.

The states argued that the new rule undermines the original intent of Title IX, which signifies in its plain text a biological distinction between the male and female sexes.

“[The new rule] requires States, schools, and universities to ignore biological sex in favor of self-professed gender identity when it comes to bathrooms, locker rooms, athletics, and even speech,” their complaint reads.

Legal Arguments

To justify the changes, the Education Department pointed to a 2020 case known as Bostock v. Clayton County, in which the U.S. Supreme Court ruled 6–3 to offer an expansive interpretation of Title VII, the federal law prohibiting sex-based discrimination in workplaces, concluding that it’s unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.

Judge Sippel disagreed with the idea that Bostock, a Title VII case, provides a legal basis to expand Title IX protections.

“Although Title IX also prohibits sex discrimination, the Supreme Court has said that ‘Title VII is a vastly different statute from Title IX,’” he wrote in the July 24 decision, quoting from the majority opinion in Bostock.

“Title IX is about schools, and as the Supreme Court has observed, schools are unlike the adult workplace. The Supreme Court in Bostock also explicitly declined to address any other laws and the meaning of their terms or whether its holding would be applicable to bathrooms, locker rooms, or anything else of the kind.”

Prior to Judge Sippel’s decision, other federal judges reached similar conclusions in four separate cases over the past weeks, putting the regulations on hold in 15 other states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

The July 24 injunction also comes at the heels of the U.S. Department of Justice asking the Supreme Court to allow all but two of the new rule’s provisions to go into effect in 10 of those states, after two appellate courts denied earlier requests.

For now, the high court is considering whether to lift the pause on the rule in the affected states.