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Multiple States Suing Biden Education Department Over Title IX Interpretation

Multiple States Suing Biden Education Department Over Title IX Interpretation

“Colleges must follow this law or risk losing their federal funding.”

The country made great advances in this area under Trump, but Biden is taking us all backwards.

Higher Ed Dive reports:

20 states sue Education Department over Title IX interpretation

One of President Joe Biden’s first executive orders affirmed that sexual orientation and gender identity are protected classes under federal sex discrimination laws.

In that order, he directed federal agencies to review whether their policies and rules complied with this interpretation, citing a landmark U.S. Supreme Court decision, Bostock v. Clayton County, that established LGBTQ protections in federal employment law.

Subsequently, the Education Department in June issued a public notice that it considered gay and transgender individuals to be shielded from discrimination under Title IX. Colleges must follow this law or risk losing their federal funding.

Bostock focused on Title VII, the anti-discrimination employment law, which contains language akin to Title IX’s.

But these similarities did not persuade some Republican state attorneys general, who in July wrote to Biden saying the administration’s interpretations “misconstrued federal law.” All of the states that signed onto the July letter, except for Texas, are plaintiffs in the lawsuit filed this week.

They are arguing the department did not pursue proper regulatory procedures when it announced its reading of Title IX in June.


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There is a fundamental difference between Bostock and the transgender issue. In Bostock, the question was whether one can refuse to hire or otherwise discriminate against someone based upon whether they are known to have entered consentual relationships with people of the same sex.

If one focuses upon what is at stake under Title IX, the question is whether a person who claims a gender different from his birth sex can enter single-sex spaces traditionally holding an expectation of privacy. A woman’s right to go to the bathroom free from intrusion by men is out at issue. Similarly, can a person born as a man expose himself in the lady’s room offering as a defense that he is questioning his gender identity?

When an employer hires a gay man, there is no harm to coworkers. However, when women are forced to share single-sex spaces with a person born as a man, or when women are force to compete against a man in intercollegiate or intramural athletics, there are clear adverse impacts upon the women. The Supreme Court did not have to balance competing rights in Bostick.