Days from Start of New Title IX Rule, Courts Offer Divided Map of Red and Blue
GOP-led states have sued to stop the new rule, which expands protections against discrimination to LGBTQ students.
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A federal district court judge in Missouri has blocked implementation of the Biden administration鈥檚 new Title IX rule in six additional states 鈥 Arkansas, Iowa, Nebraska, North Dakota and South Dakota.
The , ordered late Wednesday, brings to 21 the total number of states where the U.S. Department of Education can鈥檛 enforce the rule on Aug. 1.
Judge Rodney W. Sippel, a Clinton nominee, said the plaintiffs have a 鈥渇air chance鈥 of demonstrating that the department 鈥渆xceeded its statutory authority鈥 by using the Supreme Court’s decision in Bostock v. Clayton County to expand Title IX protections to LGBTQ students.
Ravina Nath, a recent graduate of Gunn High School in Palo Alto, California, originally included Rice University in Houston on her short list of colleges to attend this fall. With an interest in neuroscience, she was drawn to its top-ranked biomedical engineering program.
That was before Texas became one of to sue the U.S. Department of Education over its new Title IX rule. The regulation extends protections against discrimination and harassment to LGBTQ students and requires prompt investigations into students鈥 complaints.
Instead, she鈥檒l attend Barnard College in New York City.
鈥淚 need to be in a place where I would feel like my school supported me,鈥 said Nath, who became a in high school. At Rice, some students to how officials handled complaints of sexual misconduct. And she ruled out the University of Georgia, a 鈥減otential safety school,鈥 because it to make data on such investigations public. Several of her friends made similar calculations when narrowing down school choices.
鈥淢y friends who are survivors and who are LGBTQ+ students applied to schools on the West Coast or the Northeast,鈥 she said. 鈥淚 don’t think any of my friends applied to school in .鈥
With the new rule set to go into effect Aug. 1 鈥 just seven days away 鈥 a flurry of lawsuits has once again turned the map of the United States into a familiar patchwork of red and blue.
District courts have blocked the regulation in 15 Republican-led states. In the most recent development, the on Monday asked the U.S. Supreme Court to allow all but related to gender identity issues to go into effect in 10 of those states after two appellate courts denied earlier requests.
Complicating the legal math further, in an earlier action, a federal judge in Kansas the rule just at serving children of current and future members of the conservative Moms for Liberty and students involved in , another advocacy organization opposed to trans girls competing on teams consistent with their gender identity. Moms for Liberty sees the ruling as an expansion opportunity: On Tuesday, the group tied to Title IX.
With the legal landscape changing daily, some experts think the Education Department should take a step back and delay the rule.
鈥淔or schools, universities and students, it’ll calm things down,鈥 said Sandra Hodgin, who runs a Title IX consulting firm in Los Angeles. 鈥淲hat are we talking about, 75% of the country not implementing Title IX and only 25% of the country implementing it?鈥
A spokesperson said the department has no plans to skirt the Aug. 1 deadline. On Tuesday, it sent schools a list of 鈥溾 and a on how to draft policies to comply.
For now, the Supreme Court is considering whether to lift the temporary pause on the rule in the affected states.
The far larger question is what the justices might decide if and when they consider the substance of the rule itself. In addition to expanding protections to LGBTQ students, the new rule largely replaced one issued under former Education Secretary Betsy DeVos. That regulation narrowed the definition of sexual misconduct and required live hearings so male students could face their accusers.
W. Scott Lewis, managing partner with TNG Consulting, which trains districts across the country on Title IX, has advised red states covered by an injunction, like Wyoming and Idaho, that they鈥檙e currently bound by the 2020 regulation.
But that could change quickly.
鈥淚t鈥檚 a race to the Supreme Court right now,鈥 he said.
鈥楤igger than sports鈥
Some families with LGBTQ students aren鈥檛 waiting for the legal drama to run its course. They鈥檝e already to escape laws that bar trans students from using bathrooms or playing on sports teams consistent with their gender identity. Several have moved to the Denver metro area, where Lewis lives, to attend schools in a state that is not challenging the rule.
鈥淲e have more than a handful of students at my kid鈥檚 high school who moved here from Wyoming, from Kansas, from Iowa,鈥 he said.
Most of the controversy surrounding Title IX focuses on trans students鈥 participation in sports, a part of the rule that the U.S. Department of Education has delayed addressing until after the election. But in Lewis鈥檚 estimation, that issue is 鈥渂igger than sports.鈥
鈥淚f I’m in a state that won’t let me compete, I’m probably not in a state that’s very friendly to LGBTQ students on the whole,鈥 he said. 鈥淚’m far more likely to just move on.鈥
In blue states set to implement the new rule, many conservative parents say their children鈥檚 rights are also at stake.
They鈥檙e concerned students would be disciplined for not using LGBTQ kids鈥 preferred pronouns, forced to censor their speech or share bathrooms and locker rooms with trans students.
Hillary Hickland, a mother of four in central Texas, moved her children out of the Belton Independent School District partly because she felt there was too much emphasis on students鈥 gender identity. Her sixth grade daughter told her that teachers encouraged a friend to identify as a boy and use a boy鈥檚 name without the parents鈥 knowledge.
鈥淒on’t do it behind the backs of the parents. That’s a huge violation of trust,鈥 she said. As a Republican running for the Texas House, she鈥檚 concerned about sexual orientation and gender identity becoming part of Title IX. 鈥淲e have the federal government dictating what goes on in our local public schools. It really undermines the neighborhood school and that culture that we’re trying to preserve.鈥
鈥楴ine months behind鈥
Lewis predicts the Supreme Court will eventually follow its precedent in , which said that at least in the workplace, LGBTQ employees are protected from discrimination. The Biden administration鈥檚 new rule rests on that decision.
, who wrote that majority opinion, 鈥渃an鈥檛 undo Bostock. He said sex means LGBTQ rights,鈥 Lewis said. In red states where the rule is on hold, districts 鈥渂etter be ready to implement very quickly because [they鈥檙e] going to be nine months behind everyone else.鈥
If the court also decides to address sports participation 鈥 an expected part of the regulation the administration has yet to issue 鈥 Lewis said it鈥檚 possible the justices would rule similar to the way they handled , leaving it to the states to determine when trans students can compete on teams consistent with their gender identity.
He called that a 鈥渘ightmare scenario鈥 because it would 鈥渃reate a world where athletes could compete in some states but not others.鈥 And at the college, NCAA level, 鈥渢here will be all sorts of questions that can’t be limited to state borders,鈥 said Joshua Dunn, executive director of the Institute of American Civics at University of Tennessee, Knoxville. 鈥淭hey鈥檒l have to address that, too.鈥
Dunn also suggested the conservative court might not follow Bostock and could treat LGBTQ issues differently at school than they do in the workplace. He noted cases, like , where the court put limits on students鈥 First Amendment rights in schools 鈥渢hat it would never allow outside of K-12 education.鈥
Overturning 鈥楥hevron鈥
Another recent Supreme Court decision, unrelated to education, adds an additional layer of uncertainty to the debate over Title IX鈥檚 future 鈥 one that could affect both sides.
In , the court overturned what was known as 鈥淐hevron deference,鈥 which gave federal agencies broad authority to interpret ambiguous laws through guidance and regulations. The decision gives federal courts more power to explain the law when it鈥檚 unclear, and experts say, should end 鈥.鈥
The Obama administration first issued a in 2011 stating schools鈥 obligations to protect students from sexual violence and harassment, which the Trump administration largely reversed in 2020, followed by yet another 180 in the spring by Biden鈥檚 education department.
Republicans have Education Secretary Miguel Cardona that they will review the department鈥檚 rules since President Joe Biden took office, including Title IX. GOP leaders call the rule 鈥渙verreach.鈥
The conservative Heritage Foundation鈥檚 , largely assumed to be a legislative blueprint for a second Trump term,would remove the terms sexual orientation and gender identity from 鈥渆very federal rule, agency regulation, contract, grant, regulation and piece of legislation that exists.鈥
But if Trump tries to reinstate the DeVos rule, Democrats could use Loper Bright to bring the same challenge, Lewis said.
鈥淚f you 鈥 say the department does not have the authority, then the 2020 regulations don鈥檛 count either,鈥 he said. 鈥淚t was exactly the same procedure.鈥
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