Biden’s Title IX Rule Takes Effect Amid a Confusing Legal Landscape
The Biden administration’s new Title IX regulation expanding protections for LGTBQ+ students goes into effect Aug. 1—in a confused and patchwork fashion as injunctions have blocked it in 26 states as well as at some schools in other states. It also takes effect as the U.S. Supreme Court weighs an emergency request from the Biden administration to partially limit those injunctions and allow most of the rule to take effect across the country.
The U.S. Department of Education regulation clarifies for the first time that the 1972 federal statute, which bars sex discrimination in federally funded educational programs, protects students based on sexual orientation and gender identity. It also expands protections for pregnant and postpartum students, offers stronger language about retaliation, and sets out new grievance and due-process procedures.
The regulation has been challenged by 26 states as well as individual school districts, students, and private groups. Most of those challenges center on the law’s revised definition of sex discrimination to include gender identity, which the challengers contend is not consistent with the text of Title IX.
Federal district courts have issued preliminary injunctions in recent weeks that block the rule in 22 states. One injunction also blocks it at any school attended by any child of the member of Moms for Liberty or two other challenging groups. Meanwhile, one federal district judge this week rejected the request for a preliminary injunction, in a suit brought by four conservative-leaning states—Alabama, Florida, Georgia, and South Carolina. But late Wednesday, a federal appeals court intervened and blocked the rule in those states at least pending further briefing in the next few days.
A request for emergency relief awaits Supreme Court action
Many educators and legal experts were expecting the U.S. Supreme Court to weigh in by the Aug. 1 effective date, but as of late in the day July 31, the court had not acted.
U.S. Solicitor General Elizabeth B. Prelogar last week asked the high court to allow most of the Title IX rule to take effect on Aug. 1, even as the Biden administration went along with pausing some challenged provisions that touch on gender-identity discrimination.
In requests that technically stemmed from the challenges involving 10 states, Prelogar said in her two main filings that the Biden administration did not object to pausing two provisions that she characterized as being at the heart of the multiple lawsuits challenging the new regulation. One of those deals with restrooms, locker rooms, and other sex-separated spaces in education. The regulation says, for example, that a school would violate Title IX if it prohibits transgender individuals from using restrooms that align with their gender identity.
The other challenged provision the administration is OK with leaving halted for now involves an update to the definition of “hostile-environment harassment” to include harassment based on gender identity. The challengers assert that language would be used to require teachers and students to refer to transgender students by pronouns that align with their gender identity.
Prelogar said the administration would defend those provisions in the course of the litigation but was not seeking to limit the injunction against them with its emergency request in the Supreme Court.
“Most of the rule does not address gender identity,” Prelogar said, citing among other things the regulation’s protections for pregnant and postpartum students, stronger language about retaliation, and new grievance procedures.
The solicitor general, however, did ask the justices to stay the injunctions with respect to the revised overall definition of sex discrimination in the regulation.
Prelogar argued for allowing the full definition, with its inclusion of gender identity, to go into effect. But as a fallback position, she suggested the reference to gender identity could be blocked while the rest of the definition went into effect.