20 states sue Education Department over Title IX interpretation

by Joseph K. Clark

Dive Brief:

  • Twenty predominantly conservative states sued the U.S. Department of Education this week, seeking to overturn its interpretation that gay and transgender people are protected under the federal law banning sex-based discrimination in schools.
  • In court filings, the states, led by Tennessee, said that the department’s interpretation of Title IX runs afoul of federal law, regulatory processes, and the Constitution.
  • They also took aim at recent guidance from the U.S. Equal Employment Opportunity Commission stating employers must accommodate LGBTQ workers on specific issues, including their preferred restrooms and pronouns.

Dive Insight:

Education Department

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 comply 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, containing 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.” Except for Texas, all states that signed onto the July letter 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.  The agency also did not adequately justify the shift in policy, the states allege. They drew attention to the fact that the department under the Trump administration did not believe the Bostock ruling would affect Title IX.

The states also contend the department’s actions infringe on the part of the Constitution that bars Congress from using its spending powers to force states to adopt federal rules as their own. According to the lawsuit, states would have no choice but to follow the department’s policy because colleges’ federal funds may be jeopardized.

And they said the department is violating First and Tenth Amendment rights. The states ask the court to deem the department’s decision and guidance documents associated with it unlawful. They are asking for a ruling that they are not bound by it.

An Education Department spokesperson declined to comment on pending litigation. The agency is also amid a rewrite of a regulation governing Title IX and how colleges must investigate and potentially punish campus sexual misconduct.

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