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Texas Lawsuit Challenges Title IX Policies Protecting Transgender Students

In the nation’s deeply-divided political climate, many of the policies of the Biden Administration do not sit well with the government of the State of Texas. The 50th lawsuit filed by the State of Texas against the Biden Administration challenges the Administration’s interpretation of Title IX with respect to transgender students.

Ken Paxton, Attorney General of Texas, asserts that guidance issued by the Department of Education constitutes an “illegal effort to force schools to adopt ‘transgender’ ideology in schools or risk losing federal education funds.” The lawsuit, The State of Texas v. Cardona et al was filed in U.S. District Court for the Northern District of Texas on June 14, but recently the parties to the case asked the court to decide the case based on dispositive motions without the need for trial or discovery. They provided a proposed schedule for the resolution of this matter by dispositive cross-motions. After consideration, on September 12, the Court approved the plan and the proposed schedule to resolve the issues.

Texas is only one of many states to have challenged these policies, but the arguments raised in the complaint may offer some insight into the legal disputes that may arise when the new Title IX rules take effect. 

Allegations by the Texas Attorney General

In a press release accompanying the filing of the lawsuit, the Attorney General’s Office reported that the guidance issued by the Department of Education acted “arbitrarily” in expanding the category of discrimination prohibited by Title IX to include sexual orientation and gender identity. The Office notes that colleges and universities in Texas, as well as all K-12 schools that receive any federal funding risk losing that funding because the Biden Administration has “unlawfully” asserted that “conceptions promoted by the extremist transgender movement” constitute statuses protected by Title IX. The funding at issue amounts to over $6 billion, according to the Attorney General’s figures.

“Texas is challenging this blatant attempt to misuse federal regulatory power to force K-12 schools, colleges and universities in our state to accept and implement ‘transgender’ ideology—in violation of state law,” the Attorney General explains. He notes that examples provided by the Department of Education guidance would cause schools to be investigated for Title IX violations when the schools follow provisions enacted in Texas statutes.

Department of Education Guidance That Forms the Basis of the Complaint

The lawsuit takes issue with a Notice of Interpretation of Title IX published by the Department of Education on June 22, 2021. This Notice was issued to “clarify the Department’s enforcement authority over discrimination based on sexual orientation and discrimination based on gender identity.” The Department reported that the changes in interpretation were made to be consistent with the U.S. Supreme Court’s ruling and analysis in Bostock v. Clayton County.

The Department announced that they interpreted the “Title IX prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.” Then the Department announced an intention to “fully enforce” to prohibit discrimination based on these two factors. The next day, the Department issued a “Dear Educator” letter accompanied by a Fact Sheet explaining the enforcement of the expanded provisions. Because of the specific details provided in this letter and Fact Sheet, it is actually the guidance in these documents more than the Notice that appears to cause the greatest concern for the Texas Attorney General’s Office.

Objections to the Notice of Interpretation

The complaint brought by the State of Texas notes that the Notice expanding the definition of factors protected by Title IX was issued without the opportunity for comment. It also reports that the Notice changed a “long-held” position of the Department of Education, which previously had stated that Title IX’s prohibitions did not cover discrimination based on sexual orientation or gender identity.

The Attorney General pointed out that as of January 8, 2021, the Department stated that the Bostock decision did not apply to Title IX.

The Bostock case dealt with Title VII of the Civil Rights Act rather than Title IX of the Education Amendments of 1972, and the complaint from Texas objects that the language of the statutes bears differences that are “substantial” so that the definition from one statute should not automatically apply when interpreting the other. They point to a 6th Circuit case stating that Bostock was limited to Title VII and did not apply to other statutes.  

Fact Sheet Issued with Dear Educator Letter

On June 23, 2021, the Department of Education published a Dear Educator Letter with a Fact Sheet issued by the Department’s Office for Civil Rights and the Civil Rights Division of the Department of Justice. The Fact Sheet is entitled “Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families.” The Fact Sheet describes five types of incidents that would provide grounds for an investigation by the Office for Civil Rights or the Civil Rights Division.

In the complaint filed by Texas, three of the examples are mentioned. The complaint references an instance where a transgender high school girl is refused entry into the girls’ restroom because her school records identify her as male. It also describes an example in which a transgender high school girl is not allowed to try out for the cheerleading team solely because she is transgender. Finally, the complaint also notes that the Fact Sheet describes referring to a transgender student by pronouns or names besides the ones preferred by the student as “discrimination under Title IX.”

Application of the New Guidance

The complaint next goes on to state that it is not “idle speculation” to suggest that the Biden Administration intends to use the new interpretation of Title IX to “force dissenters from their new gender orthodoxy to bend the knee.” In December of last year, the Office for Civil Rights initiated an investigation against a Texas school district after the American Civil Liberties Union filed a complaint based on the Fact Sheet. The ACLU alleged that the school district created a hostile environment for students based on gender identity.

Texas Argues that Bostock Decision Does Not Support Title IX Expansion

The Attorney General first argues that the Bostock decision does not give the Department grounds to issue the guidance being relied on by the ACLU and others. The complaint notes that the Bostock decision is narrow and addresses only the issue of whether bathrooms, locker rooms, and dress codes segregated by sex would violate Title VII. The decision did not address the use of pronouns, and it did not create a new class of protected individuals, according to the complaint.

Moreover, the complaint alleges that the Bostock decision did not change the definition of “sex” but instead included an “assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” rather than “norms concerning gender identity.” Finally, the complaint asserts that the Court in Bostock did not address Title IX, which led to the promulgation of a specific statute allowing schools to maintain separate living facilities “for the different sexes” and regulations allowing “separate teams for members of each sex.”

The complaint argues that because Title IX was enacted under the “Spending Clause” of the Constitution, any condition on the grant of federal funds must be unambiguous. “Rather than a clear statement supporting the Department’s attempts to abolish single-sex facilities and programs in our Nation’s educational institutions, the text of Title IX and its implementing regulations point in the other direction, recognizing their legitimacy,” the State of Texas observes in the complaint. The complaint also asserts that the “major-questions” doctrine of interpretation comes into play and that the Administration must be able to cite clear authority from Congress to support the action.

Texas Also Argues That the Notice and Fact Sheet Cause Irreparable Harm to the State

The state argues that because the Administration is enforcing policies with a “flawed interpretation” of Title IX and the schools could lose billions of dollars in federal funding, the state would be harmed by enforcement of the guidance provisions. The complaint points out that educational institutions built sex-specific facilities based on reliance on long-standing Title IX regulations and that the federal government is intruding on the state’s sovereign authority to administer its laws and creating pressure to change those laws.

Texas Asks for Guidance on Sexual Orientation and Gender Identity to Be Vacated

Alleging that the Department exceeded its authority in issuing the Notice, Letter, and Fact Sheet, the State of Texas asks the court to set aside those documents. Texas is of course not the first state to do so, but it may be the last, given that new Title IX regulations are expected shortly, and those regulations almost assuredly will include specific prohibitions against discrimination based on sexual orientation and gender identity. 

This is not to say that states will give up the fight, but they will need to challenge the new rules rather than guidance documents. Since the regulations are issued only after a formal proposal and comment process, they could be much more difficult to challenge.

In the meantime, the Notice, Letter, and Fact Sheet are not currently enforceable in 20 states after similar challenges in federal court.

Impact of the Texas Challenge

The arguments raised by the State of Texas as to why Title IX protections should not be extended to cover discrimination on the basis of sexual orientation and gender identity, while persuasive to some, have been rejected in the past. We may see some of the same arguments raised in a challenge of the new regulations. It will be interesting to see whether the U.S. District Court in Texas issues a decision before the Biden Administration releases the final version of the revised Title IX regulations that were first proposed more than a year ago.

Protection for Students’ Rights

Regardless of the regulatory decisions and judicial challenges, the dedicated team at Duffy Law will still be fighting to protect the rights of students using the most effective arguments available. We focus our practice on defending students accused of wrongdoing and asserting the rights of students who have suffered because of inadequate protection from the institutions they trusted.

If you have questions about your rights in a particular situation, we would be happy to talk to you. Just contact us to schedule a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.