Challenges to New Title IX Regulations in Full Swing

The Biden administration issued a new set of Title IX regulations that are set to take effect on August 1. Some key aspects of the Biden administration’s Title IX rule changes include:

• Restoring a broader definition of sexual harassment that schools must address, moving away from the more narrow “unwelcome conduct so severe, pervasive and objectively offensive” definition under DeVos.
• Requiring schools to address sexual misconduct that occurs in their education programs or activities, rather than the more limited “deliberate indifference” standard previously.
• Ending the requirement to hold live hearings and allow cross-examination during Title IX grievance proceedings.

The Biden administration’s Title IX rules also included changes regarding protections for LGBTQI+ students, particularly around gender identity. Some of the key proposed changes regarding gender identity were:

• Explicitly prohibiting discrimination based on sexual orientation, gender identity, and sex characteristics. This codifies protections for LGBTQI+ students under Title IX.
• Provides that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm. Note that the amended regulations do not apply to sex-separate athletic teams.

These proposals represented a significant shift from the previous administration’s more restrictive interpretation that Title IX’s prohibitions on sex discrimination did not extend to discrimination based on gender identity or sexual orientation.

It was anticipated that the rules, issued in April, would be challenged by several states. More than 25 states have filed lawsuits challenging the new rules, including Louisiana, Mississippi, Montana, and Idaho. An injunction issued on Thursday that prohibits implementation of the new Title IX rules in those four states.

In the order, U.S. District Judge Terry A. Doughty, chief of the Western District of Louisiana, wrote that protecting “biological males” as if they were female subverts the purpose of Title IX. He said the regulation represented an “abuse of power” on the part of the Biden administration.

It is important to note that the new Title IX rules will continue to go into effect on August 1, 2024, for all California schools. F3 Law will be offering training in the fall, which I highly encourage your Title IX Coordinators to attend.

Equally important to note is that California law prohibits discrimination on the basis of gender, gender identity, and gender expression, regardless of the status of the updated Title IX regulations.

A full copy of the order from the U.S. District Court, Western District of Louisiana, can be found here:

https://storage.courtlistener.com/recap/gov.uscourts.lawd.205659/gov.uscourts.lawd.205659.53.0.pdf

“Title IX was enacted for the protection of the discrimination of biological females. However, the Final Rule may likely cause biological females more discrimination than they had before Title IX was enacted,” Judge Doughty wrote. “[B]y allowing biological men who identify as a female into locker rooms, showers, and bathrooms, biological females risk invasion of privacy, embarrassment, and sexual assault.”