Title IX in Limbo: Legal Challenges and the Evolving Debate on Gender Equity
Last Thursday, the Honorable Danny C. Reeves, a federal judge in Kentucky, struck down the Biden Administration’s Title IX regulations nationwide, almost one year after the long-awaited rule was released by the U.S. Department of Education (DOE).
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The regulations, among other things, added sexual orientation and “gender identity” as protected classes under Title IX in an effort to further combat sex-based discrimination at federally funded schools. Additionally, the regulations brought about a substantial shift in how schools were required to address allegations of sexual misconduct—prompting institutions to undertake a comprehensive overhaul of their policies and procedures for responding to and investigating Title IX complaints.
Judge Reeves’ decision, which came in response to a lawsuit filed by six states, reasoned that the regulations exceeded the DOE’s authority and were unconstitutional. More specifically, the lawsuit took issue with the rule’s protections for transgender students. While the DOE contended that the rules were supported by Bostock v. Clayton County—a 2020 Supreme Court decision that extended LGBTQI+ protections under Title VII—the Court disagreed, emphasizing that Bostock is specifically limited to the Title VII context and does not extend to Title IX. The Court explained that “expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head,” and noted that when Title IX is viewed in its entirety, discrimination on the basis of sex was meant only to include “discrimination on the basis of being a male or female.” Critics of the regulations worried that the regulations would undermine safety, freedom and fairness for women, in part by allowing transgender women to play on women’s sports teams. Ultimately, the Court exercised its “independent judgment”—a new standard which curtails the authority of federal agencies established by the Supreme Court’s decision in Loper Bright Enters. v. Raimondo—to strike down the regulations in their entirety.
When the Biden Administration first proposed the regulations last April, many lawmakers challenged the rule, which led to a temporary block on implementing the rule in 26 states. Notably, just last month, the Biden Administration withdrew these proposed regulations in light of these challenges. However, the lawsuit in Kentucky was already pending before the Court by this time.
Since the Biden Administration’s rule was vacated, the Trump Administration will be free to reexamine Title IX once he takes office, which he has indicated that he plans to do early into his term.
For now, schools that have adjusted their policies and procedures to comply with the Biden Administration’s rule should review their policies and procedures and determine whether they must adjust their policies to revert back to the requirements of the previous Title IX rule, which took effect in 2020, during the first Trump Administration. Schools must assess whether their existing practices, particularly those related to sexual harassment, discrimination and the handling of Title IX complaints, still align with the 2020 regulations. In cases where schools have adopted procedures that are inconsistent with the 2020 regulations, they may need to make necessary adjustments to ensure compliance with the prior guidelines. In addition, institutions may have to retrain and reeducate their staff on the 2020 regulations, though institutions are permitted to continue using any policies related to harassment and discrimination that do not conflict with the 2020 Trump Administration rule. As the legal landscape surrounding Title IX continues to evolve, schools must stay informed about ongoing legal developments and be prepared to adapt their policies as needed to comply with any future changes to Title IX regulations.
Co-authors Stephanie Wolbransky and Monica Matias Quiñones are associates in the Litigation Department and members of the education practice group at Klehr Harrison.