Well, That Was Fast: 3 Federal Lawsuits, Dropping Simultaneously, Challenge Education Department’s New Title IX Rule

Monday may have been Education Secretary Miguel Cordona’s terrible, horrible, no good, very bad day. The ink was barely dry on the Education Department’s vast rewrite of Title IX before three separate federal lawsuits were filed in quick succession in courthouses in Louisiana, Texas, and Alabama.

The essential elements of each lawsuit share a common theme: The Biden administration’s new Title IX rule is illegal.

Title IX of the Education Amendments Act of 1972 is a single sentence. It simply bars sex discrimination in any federally funded education program.

It doesn’t matter how much federal funding a school or institution of higher education receives. And it doesn’t matter whether such funding from the federal government is direct or indirect. So yes, even the vast majority of private schools must comply with the new rule.   

But this simple, longstanding prohibition on sex discrimination has been manipulated by the Biden administration to undermine constitutional freedoms (including the freedom of speech), eliminate commonsense due process protections for students accused of sexual misconduct, and erase the very women that Title IX was enacted to protect.

The Department of Education has unilaterally expanded the prohibition against discrimination based on “sex” to include a prohibition against discrimination based on “sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”

None of these terms was in the minds of the ratifiers of Title IX in 1972, but that’s of no concern to the Department of Education, which believes its vast expansion of the word “sex” is legally sound.

Federal courts have disagreed.   

Shortly after midnight Monday morning, the Defense of Freedom Institute and the states of Louisiana, Mississippi, Montana, and Idaho filed the first of the three lawsuits in U.S. District Court for the Western District of Louisiana against Cardona, Assistant Education Secretary for Civil Rights Catherine Lhamon, and the Department of Education as a whole.

In the complaint seeking declaratory and injunctive relief, the Defense of Freedom Institute writes that the rule “is a naked attempt to strongarm our schools into molding our children … in the government’s preferred image of how a child should think, act, and speak. The final rule is an affront to the dignity of families and school administrators everywhere, and it is nowhere near legal.”

Among other claims, DFI argues that the Title IX rule interferes with the states’ ability to enforce their own duly enacted laws protecting girls’ and women’s scholastic athletics and defining “sex” for purposes of state law. It also claims the rule violates the Administrative Procedure Act—a federal law governing all of executive agency rulemaking.

The Administrative Procedure Act requires courts to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

In a public statement, the states’ lawyers weighed in, with Louisiana Attorney General Liz Murrill, a Republican, saying: “This is all for a political agenda, ignoring significant safety concerns for young women students in preschools, elementary schools, middle schools, high schools, colleges and universities across Louisiana and the entire country.”

Mississippi Attorney General Lynn Fitch, a Republican, added:

Title IX has been a game-changer for generations of women. For more than 50 years, it has given young girls an opportunity to compete on a level playing field and offered them a fair chance to excel. The Biden administration’s pursuit of an extremist political agenda here will destroy these important gains. … The administration’s legal theories are novel, at best, and they cut legal corners to push them through, and we intend to defeat this rule in the courts.

The second suit was brought by Alabama in U.S. District Court for the Northern District of Alabama, in conjunction with Florida, Georgia, South Carolina, and the organizations Independent Women’s Law Center, Parents Defending Education, and Speech First.

“At the time of enactment, no one doubted that the law’s use of ‘sex’ referred to biological sex … all relevant indicators confirmed what everyone understood: ‘sex,’ as used in Title IX, means biological sex and does not include ‘gender identity’ or sexual orientation,” the parties argue in the suit, claiming that compliance with the new Title IX rule would be burdensome and costly as well as hamper the states’ ability to enforce their own laws.

And, like those in the Defense of Freedom Institute’s lawsuit, the plaintiffs also claim the rule violates the Administrative Procedure Act.

Within hours, Texas also had filed a lawsuit against the Department of Education and various federal officials over the Title IX rule. Like the plaintiffs in the previous lawsuits, Texas claims the Department of Education had violated the Administrative Procedure Act, writing: “If Congress intends to impose a condition on the grant of federal funding under Title IX, it must do so with ‘a clear voice’ [and] ‘unambiguously.’”

By drafting a significant statutory rewrite of Title IX—something that Texas argues the Department of Education lacks authority to do—the rule interfered with the state sovereignty of Texas and impeded the state’s ability to enforce its own laws.

In a press release, Texas Attorney General Ken Paxton, a Republican, says:

Texas will not allow Joe Biden to rewrite Title IX at whim, destroying legal protections for women in furtherance of his radical obsession with gender ideology. …This attempt to subvert federal law is plainly illegal, undemocratic, and divorced from reality. Texas will always take the lead to oppose Biden’s extremist, destructive policies that put women at risk.

If the new Title IX rule is blocked by any of the federal judges who will hear these cases, it won’t be the first time the Biden administration’s interpretation of Title IX has been held up. After a coalition of 20 states led by Tennessee originally sued the Department of Education in 2022, a federal judge halted the earlier, informal Title IX guidance in those states.   

Although the U.S. Supreme Court has appeared allergic to consideration of transgender “rights,” it undoubtedly will be forced at some point to wrestle with the notion of whether the president has the authority to change longstanding federal civil rights law with a stroke of a pen.

In 2022, the high court, in West Virginia v. EPA, struck down the Environmental Protection Agency’s attempt to create authority for itself out of thin air to regulate the electricity sector, and with it, a major component of the American economy’s bedrock based on a narrow portion of the Clean Air Act.

The Supreme Court wrote: “Administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’”

The high court ruled that EPA lacked that authority in 2022.

And now, the Department of Education lacks authority for its Title IX rule.

The question that remains to be answered is when the Biden administration’s long-discussed Title IX rule finally will be struck down.

In the meantime, school administrators across the country wait for a resolution of what “equality” in the 2024-25 school year will look like.