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More Than Half the States in the U.S. Sue to Block Expansion of Title IX to Include Gender Identity

| Felice D. | Title IX

The new Title IX regulations set to take effect August 1, 2024, are being met with rejection by the Attorneys General in 26 U.S. states. While the issue is often highlighted in the news as a rejection of protections for LGBTQIA+ students, the expansion of Title IX protections on the basis of sexual orientation does not seem to be at the heart of the dispute. Instead, states are referring primarily to provisions regarding gender identity as the grounds for blocking the implementation of the regulations.

With state governors instructing educators to disregard the new rules and the federal government insisting that schools must bring their policies into compliance by August 1, it puts schools in a very difficult position. Numerous individuals and organizations have also joined in the lawsuits seeking to block the implementation of the new rules, and if they are blocked, it is not hard to imagine many more individuals suing within these states to enforce their federal Title IX rights. The issues may be fully resolved until the Supreme Court eventually rules on the issues involved.

Strategic Filing of Challenges

Since the changes in the Title IX regulations were proposed nearly two years ago, conservative lawmakers who disagreed with the proposals have had plenty of time to develop legal strategies to counter the effects. The federal court challenges are spread across numerous jurisdictions. Although more than half the states in the country are represented, Attorneys General often joined together in their lawsuits, filing them in the jurisdictions where they are likely to be heard by the most conservative judges. According to legal analysts, if they succeed in getting one judge to vacate the rule, then that is traditionally held to vacate enforcement nationwide. With the political importance attached to the provisions, however, this tradition may not be honored.

The choice of filing location took into account not only initial decisions but appeals as well. For instance, Virginia is one of the states challenging the new rules, but instead of filing a lawsuit in Virginia, the state joined the lawsuit filed in Kentucky. On appeal, a case filed in Virginia would be heard in the 4th Circuit Court of Appeals, a court that has already ruled that Title IX protections extend to transgender students. By filing in Kentucky, the courts ensure that appeals will be heard by the 6th Circuit Court of Appeals instead.

The breakdown of lawsuits by state includes:

  • Texas (filed in the Northern District of Texas on April 29)
  • Louisiana, Mississippi, Montana, and Idaho (filed in the Western District of Louisiana on April 29)
  • Alabama, Florida, Georgia, and South Carolina (filed in the Northern District of Alabama on April 29)
  • Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia (filed in the Eastern District of Kentucky on April 30)
  • Oklahoma (filed in the Western District of Oklahoma on May 6)
  • Missouri, Arkansas, Iowa, Nebraska, North Dakota, and South Dakota (filed in the Eastern District of Missouri on May 7)
  • Kansas, Alaska, Utah, and Wyoming (filed in the District of Kansas on May 14)

All the Attorneys General participating in lawsuits are members of the Republican Attorneys General Association. At this point, John Formella of New Hampshire is the only member not participating in the lawsuits.

Understanding State Objections

Texas was the first state to file suit against the new regulations. The claim asserts that by telling states “that they must ignore biological sex or face enforcement actions and the loss of federal education funding,” the new Title IX rules represent the Biden administration’s attempt to “effect radical social change in our Nation’s schools.” Other lawsuits echo these sentiments. 

The most recent suit, filed in Kansas, insists that instead of the “true mission of Title IX,” which the participating states insist is to protect women and girls from discrimination in education and athletics, the Biden administration is using Title IX to mandate the acceptance of “left-wing” transgender ideology in K-12 schools and to require colleges to punish students for not agreeing with these views. They further allege that the new rules require schools to provide assistance to students seeking abortions in conflict with an abortion neutrality provision of Title IX.

Legal Grounds for the Objections

Overall, the lawsuits assert a variety of grounds for objecting to the new Title IX regulations. Among other things, the suits claim that all or part of the new rules:

  • Misinterpret the U.S. Supreme Court’s decision in Bostock v. Clayton County
  • Violate constitutional safeguards for students accused of harassment
  • Interfere with constitutionally protected free speech (First Amendment)
  • Violate the Spending Clause of the Constitution, along with the Fifth, Tenth, and Fourteenth Amendments
  • Violate the Administrative Procedure Act
  • Discriminate by allowing access to single-sex programs only for students of transgender identity

Depending on the depth of the analysis, the resulting decisions, like many of the complaints themselves, could be quite lengthy. However, given the fact that the release of the Final Rule itself was over 1,500 pages long, the breadth of arguments raised in the complaints should not be surprising.

Although the suit filed by Texas seeks to block enforcement of provisions extending Title IX protections to sexual orientation and gender identity, most of the rules call for all the new rules to be set aside. 

The most recent lawsuit filed in Kansas includes a much more specific request for relief, asking that states not be bound by the Final Rule and a declaration that:

  • Schools can “separate students by biological sex in appropriate circumstances in accordance with Title IX’s statutory text and longstanding DoEd regulations”
  • Schools are allowed to maintain showers, locker rooms, restrooms, residential facilities and other living facilities separated by biological sex, and they are allowed to regulate access to these facilities on the basis of biological sex
  • Employees and students are not required to use an individual’s preferred pronouns
  • Schools are allowed to maintain athletic teams based on biological sex and to assign individuals to a team based on their biological sex

Staying Abreast of Judicial Interpretations

When trying to understand the rights of students, faculty, and staff under Title IX, it is critical to pay attention to interpretations in the courts as well as the rules set on campuses and the federal regulations themselves. At Nesenoff & Miltenberg, LLP, we focus our practice on protecting Title IX rights, so we have an understanding of these issues that is hard to match.

If you want to discuss pursuing a Title IX complaint or defending against allegations of a violation anywhere in the U.S., please schedule a consultation with our dedicated team. We understand how to effectively safeguard rights on and off campus. For a confidential consultation, call us at 212-736-4500 or contact us online.