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.”

The Case

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.

The Ruling

District Judge Reed O’Connor’s 112-page ruling found the DOE’s reinterpretation of Title IX unlawful in four ways.

1. The DOE’s reinterpretation of “sex discrimination” changes the meaning and spirit of Title IX.

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”:

[The DOE] argues that “sex”, as used in [the phrase “on the basis of sex”] includes gender identity, but a review of contemporary dictionaries does not support that definition.
2. The DOE’s new interpretation of “sex discrimination” is arbitrary.

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.

3. The DOE’s reinterpretation effectively decides a major policy issue — which isn’t its job.

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.

4. A federal agency can’t change the way a federal program distributes money in coercive or
deceptive ways.

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.
According to O’Connor, the DOE’s redefinition of “sex discrimination” violates all four requirements:

[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.

The [guidance] imposes conditions that are contrary to the federal interest of promoting and preserving equal opportunities in education for both sexes. In particular, [it] will deprive women of opportunities in which physical differences most readily come to bear: athletics.
The [guidance] appears to impermissibly induce recipients of Title IX funds to “engage in activities that themselves would be unconstitutional.” Such acts could arise in many contexts, including infringement of a student or a teacher’s Free Speech, Free Exercise and Due Process rights.
The “threatened loss” of a massive percentage of Title IX funding —estimated in the billions of dollars — is “economic dragooning that leaves [Texas] no real option but to acquiesce.”
Why It Matters

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

DOE Wants to Redefine ‘Sex’ in Title IX – Erasing Women, Threatening Privacy and Safety, and Endangering Schoolchildren

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