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The Biden administration wants to fight this discrimination using the federal law known as Title IX, but Republican-dominated states are trying to stop the move.
The past few days have seen a lot of court action aimed at stopping the Biden administration’s efforts to protect LGBTQ+ students through Title IX of the Education Amendments of 1972, the federal law banning sex discrimination in education. Here we take a look at Title IX, the government’s rulemaking process, what’s been happening, and what comes next.
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It’s a federal law that was signed by President Richard Nixon — yes! — in 1972, as the second-wave feminist movement gathered steam. As part of the Education Amendments of 1972, it amended the Civil Rights Act of 1964 to ban sex discrimination in any educational program that receives federal funds. It states, “No person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” It covers K-12 schools as well as colleges and universities.
U.S. Rep. Patsy Mink, a Hawaii Democrat, was the chief author and sponsor of Title IX. She was the first Asian American woman and first woman of color overall to serve in Congress. Two other Democrats, U.S. Rep. Edith Green of Oregon and U.S. Sen. Birch Bayh of Indiana, were also key backers of the legislation.
Title IX is enforced by the U.S. Department of Education’s Office for Civil Rights, which has the duty of investigating complaints about noncompliance with Title IX, which anyone can file. The law includes a provision allowing the federal government to withdraw funds from schools that are not in compliance, but so far the government has never done so, even though an estimated 80 percent to 90 percent of schools are out of compliance, at least in the realm of athletics, according to the Women’s Sports Foundation. When the OCR determines an institution is not complying, it “finds them ‘in compliance conditioned on remedying identified problems,’” the foundation notes.
The law has been controversial ever since it passed. These days, those who oppose expanding Title IX to protect LGBTQ+ students, especially transgender students, often make the questionable argument that they’re acting in the name of women’s rights — questionable because they’re usually conservative Republicans who don’t seem to care about women’s rights otherwise. But early on, Title IX was denounced by many on the far right. They include no less than the late U.S. Sen. Jesse Helms, a North Carolina Republican known for homophobia and misogyny. In 1975, he introduced a bill condemning Title IX in its entirety, and it didn’t pass, but he then tried to limit its application to athletics. He was again unsuccessful.
The scope of Title IX has varied over the years, being limited or expanded by court decisions or congressional action. It can be changed by other means as well. On the first day of his presidency in 2021, Joe Biden directed federal agencies to apply the findings of Bostock v. Clayton County, a 2020 Supreme Court decision, in their handling of laws. In Bostock, the court ruled that workplace discrimination based on sexual orientation or gender identity is sex discrimination under Title VII of the Civil Rights Act of 1964. Biden wanted this applied in venues other than the workplace, so for the Department of Education, this meant advising educational institutions that they should consider discrimination based on sexual orientation or gender identity to be sex discrimination under Title IX. This guidance was nonbinding, as was similar guidance issued under President Barack Obama in 2016, but it did warn schools they could be violating federal law if they discriminate in this fashion. The Obama guidance ended up being blocked in court and then revoked when Donald Trump became president. After Trump’s action, schools remained free to enact LGBTQ-inclusive policies, but they didn’t have the federal government advising them to do so.
The Biden guidance is still out there and being haggled over in court, but this year his administration made another move toward expanding Title IX to cover LGBTQ+ students, using the federal rulemaking process. Readers might ask, doesn’t it take a court decision or congressional action to expand a law? Not always. Congress gives federal agencies the authority to issue regulations concerning enforcement of laws, using the rulemaking process. The agencies must publish notices of proposed and final rules in the Federal Register and allow a period of public comment before a rule becomes final. Unlike guidance, a rule is legally binding.
The Department of Education released its final Title IX rule in April, and it is set to take effect August 1. It clarifies that discrimination based on sexual orientation or gender identity is unlawful sex discrimination. Schools that don’t allow transgender and nonbinary students access to the restrooms or locker rooms of their choice or use their chosen pronouns would be committing illegal discrimination, as would those that don’t intervene in anti-LGBTQ+ bullying or harassment. The rule would also expand protections for students who are pregnant or parenting. It establishes clear requirements for schools to respond promptly to complaints, investigate them in a transparent and impartial manner, remedy any discrimination, and prevent its recurrence.
Republican attorneys general in states around the nation quickly filed lawsuits aimed at keeping the rule from going into effect; so far suits have been filed from 26 states. The AGs often claim they are protecting girls and women from harassment by trans people in restrooms, even though it’s trans people who generally suffer harassment. Some also claim they're protecting women's sports. But actually, the rule in question doesn’t address athletics. The Department of Education has proposed a separate rule stating that overall exclusion of trans student athletes from competing under their gender identity is unlawful discrimination but allowing schools to exclude them in certain circumstances. This rule has not been finalized.
On the Title IX rule issued in April, federal judges have blocked its enforcement in 10 states so far. The judges issued preliminary injunctions, which block enforcement while a lawsuit is heard. Judges usually issue these when they believe the suit will be successful. (A permanent injunction, unlike a preliminary one, strikes down a law.) A federal judge in Kentucky issued a preliminary injunction Monday in a suit brought by Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia, so it blocks the rule in those states. Last Thursday, a federal judge in Louisiana did the same in a suit brought by from Louisiana, Mississippi, Montana, and Idaho.
In addition to the lawsuits, education officials in some states are advising schools to ignore the Title IX rule. They include South Carolina Superintendent of Education Ellen Weaver and Oklahoma Superintendent of Public Instruction Ryan Walters. And in Utah, the state legislature will meet in special session Wednesday in an attempt to block enforcement of the rule there, using a state law under which legislators can decide not to comply with any law they believe violates the U.S. Constitution.
The nonbinding guidance is being challenged as well. Last week a judge in Texas temporarily blocked application the guidance as a result of a lawsuit brought there. In 2022, a federal judge in Tennessee had blocked the guidance from being enforced in 20 other states that sued, but the injunction he issued is on hold while the Biden administration appeals.
The Biden administration is expected to stand by all of its actions and continue to press its case in court. Supporters of LGBTQ+ rights from liberal states are chiming in too. Officials in 15 states and the District of Columbia have filed a friend-of-the-court brief in Texas backing the Title IX rule. The court battles are likely to go on for months, perhaps years, and the issue will undoubtedly inform this year's presidential election.
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