Huge Title IX Win: Department of Education’s 2021 Interpretation Ruled ‘Unlawful’
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A federal court prevented the Department of Education (DOE) from enforcing its revised Title IX guidance in Texas Tuesday — a major win in the fight to protect women’s rights and spaces.
A judge on the U.S. District Court for Northern Texas ruled in favor of The Lone Star State after determining the DOE’s interpretation of Title IX to include protections for so-called gender identity “functionally rewrites [the statute] in a way that shockingly transforms American education and usurps a major question from Congress.”
Texas Attorney General Ken Paxton filed the suit last June, accusing the DOE of coercing Texas schools to “accept and implement ‘transgender ideology’” or risk losing up to $6 billion dollars in federal education funding.
Paxton’s accusations refer to the DOE’s “reinterpretation” of Title IX in 2021 — three years before it officially revised the statute this April.
In June 2021, the department announced it would now “interpret” Title IX’s protections against “sex discrimination” to include discrimination based on “gender identity” — a person’s “internal feeling” of being a man or a woman.
This ideological about-face came with a new set of guidelines for schools, including using students’ “preferred pronouns” and giving them access to the bathrooms, locker rooms and sports teams consistent with their “gender identity.”
Schools who refused to follow these new rules faced losing federal funding. In Texas, schools further risked violating a state law separating public school sports teams exclusively by sex.
District Judge Reed O’Connor’s 112-page ruling found the DOE’s reinterpretation of Title IX unlawful in four ways.
Courts interpret statutes by “interpreting the words consistent with their ‘ordinary meaning’ … at the time Congress enacted [it],” O’Connor writes.When legislators created Title IX in 1972, the judge notes, “‘Sex’ carried an unambiguously binary meaning — a person’s biological sex, which is ‘an immutable characteristic determined solely at birth.’”
O’Connor finds “contemporary” definitions to support this traditional interpretation of sex — but none incorporating “gender identity”:
Under the Administrative Procedures Act, government agencies can’t make “arbitrary or capricious” changes to statutes. But O’Connor finds no legal foundation for the DOE’s inclusion of “gender identity” in “sex”.“Neither Title IX nor its implementing regulations provide a basis for [the DOE] to define discrimination on the basis of sex in this manner,” he writes.
O’Connor repeatedly emphasizes that only elected officials — not government agencies — can create policy. In particular, the judge brings up the Major Questions Doctrine, which gives Congress exclusive authority to determine questions of “deep ‘economic and political significance’” unless explicitly delegated to another entity.
A reinterpretation of Title IX that “completely subverts Title IX’s text,” writes O’Connor, constitutes “major policy decision” the DOE cannot legally make.
The Spending Clause is the part of the Constitution giving Congress the power of the purse, which O’Connor notes includes the authority to give money through federal programs.But the Spending Clause also comes with restrictions. To change funding distribution, O’Connor enumerates, an agency must:
- Clearly and “unambiguously” announce changes so recipients understand how they can continue receiving money.
- Show changes serve a compelling government interest.
- Ensure the changes won’t violate other constitutional freedoms.
- Ensure the economic penalty of failing to comply with the changes isn’t disproportionately large.
[The DOE’s new guidance] falls short of articulating unambiguously clear conditions given that the Department declines to discuss how the [guidance] will apply in various situations.
In his ruling, Judge O’Connor notes that Texas’ case closely mirrors that of the pending cases against Title IX’s new language, which officially includes discrimination on the basis of “gender identity” under the umbrella of “sex discrimination.”
Texas’ victory shows cases against the DOE’s evisceration of Title IX can be won — and that’s big news for those who know women and girls deserve single-sex spaces and opportunities.
Additional Articles and Resources
New DOE Rule Discriminates Against Women in Sports … Time to #TakeBackTitleIX
Title IX Redefinition of ‘Sex’ Faces Defiance and a Flood of Lawsuits
Biden Becomes Nation’s Most Powerful Trans Activist With Executive Order
Florida and Oklahoma Reject Biden Admin’s Rule Letting Men into Women’s Bathrooms and Sports
New Biden Admin. Rule Lets Men into Women’s Locker Rooms, Bathrooms and Sports
Riley Gaines, Fourth-Wave Feminism and the Battle for Women’s Sports
A Singularly Christian View of the Transgender Problem
New Biden Admin. Rule Lets Men into Women’s Locker Rooms, Bathrooms and Sports
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ABOUT THE AUTHOR
Emily Washburn is a staff reporter for the Daily Citizen at Focus on the Family and regularly writes stories about politics and noteworthy people. She previously served as a staff reporter for Forbes Magazine, editorial assistant, and contributor for Discourse Magazine and Editor-in-Chief of the newspaper at Westmont College, where she studied communications and political science. Emily has never visited a beach she hasn’t swam at, and is happiest reading a book somewhere tropical.
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