In recent days, a wave of legal actions has surged against the Biden administration's efforts to protect LGBTQ+ students under Title IX of the Education Amendments of 1972.

This federal law, which bans sex discrimination in educational settings, has been a cornerstone of gender equality in education for over five decades. However, as the Biden administration seeks to expand its scope to explicitly include protection for LGBTQ+ individuals, it faces significant opposition.

Court Battles Intensify as Biden Administration Seeks to Expand Title IX Protections for LGBTQ+ Students
WIKIMEDIA COMMONS / David Lienemann

Understanding Title IX: A Historical Overview

Title IX, a landmark piece of legislation, was signed into law by President Richard Nixon in 1972 as part of the Education Amendments of 1972. This federal law aims to eliminate sex discrimination in any educational program or activity that receives federal funding. U.S. Representative Patsy Mink, a Hawaii Democrat, was the chief author and sponsor of Title IX, marking a significant achievement in her career as the first Asian American woman and first woman of color in Congress. Other key supporters included U.S. Rep. Edith Green of Oregon and U.S. Sen. Birch Bayh of Indiana. Title IX is enforced by the U.S. Department of Education's Office for Civil Rights (OCR), which investigates complaints about noncompliance.

Despite its noble intentions, Title IX has faced controversy since its inception. While some view it as a vital tool for promoting gender equality in education, others argue against its expanding scope. For instance, Title IX has often been contested by conservative figures, such as the late U.S. Sen. Jesse Helms, who tried unsuccessfully to limit its application to athletics. Today, the debate continues, especially around the inclusion of protections for LGBTQ+ students under Title IX.

The Biden Administration's Efforts and Rulemaking Process

Since taking office, President Joe Biden has sought to broaden the scope of Title IX to include protections for LGBTQ+ students, aligning with the 2020 Supreme Court decision in Bostock v. Clayton County. This landmark ruling recognized that workplace discrimination based on sexual orientation or gender identity constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. Biden's administration aims to extend this interpretation to Title IX, ensuring that educational institutions recognize discrimination based on sexual orientation or gender identity as unlawful.

The rulemaking process, a critical component of federal governance, allows agencies to issue regulations that have the force of law. This involves publishing proposed rules in the Federal Register and inviting public comments before finalizing them. Unlike nonbinding guidance, which serves as a recommendation, rules are legally enforceable. Following this process, the Department of Education released a final Title IX rule in April 2024, set to take effect on August 1, 2024. This rule mandates that schools must accommodate transgender and nonbinary students in terms of restroom and locker room access, use of chosen pronouns, and protections against bullying and harassment. Additionally, the rule expands protections for pregnant and parenting students, establishing clear requirements for schools to address and remedy discrimination.

Current Legal Challenges and Future Prospects

The Biden administration's new Title IX rule has sparked a series of legal challenges from conservative states. Republican attorneys general from 26 states have filed lawsuits seeking to prevent the rule from taking effect, arguing that it poses a threat to women's rights and safety, particularly in restrooms and sports. Notably, the Department of Education's rule does not specifically address athletics; a separate proposed rule aims to tackle this issue, allowing for some exclusions of transgender athletes under certain conditions.

Federal judges have issued preliminary injunctions blocking the enforcement of the Title IX rule in 10 states, with more lawsuits pending. For instance, a federal judge in Kentucky issued an injunction affecting six states, while another in Louisiana did the same for four states. These injunctions, which halt the rule's enforcement while the cases are being heard, suggest that the legal battles will be protracted.

In addition to the court cases, some state education officials are advising schools to disregard the new Title IX rule. South Carolina's Superintendent of Education, Ellen Weaver, and Oklahoma's Superintendent of Public Instruction, Ryan Walters, are among those pushing back. Utah's state legislature is also attempting to block the rule through a special session, leveraging a state law that allows legislators to reject laws they believe violate the U.S. Constitution.

Despite these challenges, the Biden administration is expected to defend its Title IX actions vigorously. Supporters of LGBTQ+ rights from liberal states are also taking action, with officials from 15 states and the District of Columbia filing a friend-of-the-court brief in support of the rule. The outcome of these legal disputes will likely have significant implications for the future of LGBTQ+ protections in education and will undoubtedly influence the political landscape, especially in the upcoming presidential election.