Biden’s proposed Title IX rule almost certain to find itself in legal crosshairs

Higher Ed Dive

Jeremy Bauer-Wolf

August 1, 2022

Legal experts weren’t surprised last month when a federal judge in Tennessee temporarily blocked the U.S. Department of Education from enforcing, in some parts of the country, directives designed to protect LGBTQ students in colleges and K-12 schools.

After all, the ruling came from a conservative circuit court. It favored 20 predominantly Republican states that sued last year. They alleged the Ed Department’s guidance on a federal law banning sex-based discrimination, Title IX, infringed on their ability to govern.

The department had determined Title IX shields students based on their gender identity and sexual orientation. Under that interpretation, transgender students would be permitted to use restrooms and school locker rooms of their choice. This clashed explicitly with some of the states’ laws.

However, the decision also portends trouble for the Biden administration’s broader agenda to use Title IX to combat LGBTQ discrimination. The Ed Department last month introduced a proposal that would cement into regulation protections for gay and transgender students under Title IX.

Almost certainly, that draft rule will face lawsuits, too. Conservative attorneys general threatened to sue even before it was released this year, writing to the Ed Department they would “take legal action to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports.” The new draft rule largely dodged that particular issue for the time being.

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