Republican attorneys general, Senate Democrats pull feds in opposite directions on Title IX

"The Department needs to concern itself with everyone's constitutional rights, not merely those that it prefers," Republican AGs tell secretary of education.

Updated: September 14, 2022 - 11:56pm

Republican attorneys general and Senate Democrats are pulling the Department of Education in opposite directions in the Title IX rulemaking proceeding to redefine "sex" as gender identity. The public comment period for the proposed regulations ended Monday night.

In dueling letters to Secretary Miguel Cardona, the AGs warned that the department was claiming nonexistent authority from the Supreme Court and Congress to supersede their states' laws, while the senators demanded regulators expand harassment to include "misgendering," which would invite First Amendment legal challenges.

Indiana Attorney General Todd Rokita, who leads the 19-state coalition, said in a press release the administration "seeks to codify anti-woman prejudice and undo the very protections for which Title IX was created."

The AGs' letter to Cardona echoes earlier arguments, validated by at least one federal judge, that the Supreme Court's Bostock decision doesn't apply to Title IX and didn't broaden the meaning of "sex" beyond biology, as the proposed regulation does. 

Title IX's requirement that schools "provide equal athletic opportunity" for both sexes, resulting in 3.6 million females playing high school or college sports in 2021, cannot survive the Biden administration's gender identity rewrite, the AGs said.

"Male athletic advantages ... begin with surges in testosterone in the womb and during a mini-puberty stage during the first six months after birth" that can't be reversed later to enable "meaningful competition between males who identify as women and biological females," they wrote. Neither can pre-puberty hormone suppression erase male height advantages.

The department "confuses spending conditions for law" by claiming it can override state laws recognizing biological sex through Title IX funding, thereby "induc[ing] citizens and political subdivisions to violate state law with impunity," the AGs said. 

"Spending Clause legislation operates based on consent," not imposition, they said, quoting a Supreme Court decision this year.

Another SCOTUS precedent, the "clear-statement rule," prevents the feds from unilaterally changing grant conditions. "No one takes seriously the idea that, from the get-go, grant recipients understood Title IX to make a clear statement that gender identity discrimination was prohibited," they write.

Biological sex is baked into Title IX's recognition of specific programs open to "one sex," including the "Young Men's Christian Association" and female-only "beauty pageants," as well as "separate living facilities for the different sexes," they said, which "presume two discrete sexes with different anatomies and physiologies."

The department would violate its own statutory creation, and a century of SCOTUS rulings, by authorizing school officials to affirm students' chosen gender identities without parental approval or knowledge, the AGs tell Cardona. 

A 1979 ruling on mental health and "juvenile commitment procedures" is particularly problematic for the proposed regulation's allowance for school officials to counsel and refer gender-confused children for "medical attention," according to the letter. The high court said parents "can and must" make judgments about medical treatment for even adolescents.

"The Department needs to concern itself with everyone’s constitutional rights, not merely those that it prefers," the AGs conclude.

Nineteen Senate Democrats led by Washington's Patty Murray mostly affirmed the department's proposed regulation and its view that Bostock extends to Title IX, despite the high court's explicit refusal to define "sex" outside Title VII employment discrimination or even apply the ruling to "sex-segregated bathrooms, locker rooms, and dress codes" under Title VII.

"We hope the explicit inclusion of LGBTQIA+ students ... will help address the recent onslaught of discriminatory legislative attacks on transgender and nonbinary students," they wrote, referring to sex-based access to school bathrooms, age-based limits on gender-identity curricula and proposals to ban puberty blockers and cross-sex hormones for gender-confused children.

But the feds should go further, they urge, by stating that "students must be housed consistent with their gender identity," meaning biological males and females in the same rooms, and specifying that "intentional misgendering is a form of harassment" with examples of "what treatment amounts to a violation of Title IX."

At least one federal appeals court has shot down punishment in schools for misgendering, albeit not in a peer-to-peer context. 

The 6th Circuit ruled that Ohio's Shawnee State University violated professor Nicholas Meriwether's First Amendment rights by compelling him, against his religious beliefs, to refer to a male student who identifies as a woman with female pronouns. In April, the school agreed to pay Meriwether $400,000 to settle the case.

The senators urged the department to move forward with its pledged separate rulemaking on gender identity and athletic participation. "Protecting transgender students' rights to participate in athletic activities consistent with their gender identity in no way disadvantages their fellow students, and does not take away or undermine the protections Title IX provides for women and girls," they wrote.

A former Department of Education lawyer who helped write the Trump administration's Title IX regulation, Candice Jackson, accused the senators of "twisting Title IX into a men's rights statute" — language favored by gender-critical radical feminists.

"Dem leaders are pleased that the ED Dept is erasing sex in law, but thinks ED should go further to make sure that girls have to accept male dorm roommates, schools punish correctly sexing as 'sexual harassment,' & destroy girls' sports to make boys happier," she wrote in a Twitter thread Tuesday.

Jackson is cocounsel to female inmates challenging California's gender-identity prison placement law along with Lauren Bone (formerly Adams), who recently left the Women's Liberation Front as legal director. They set up a private practice focused on protecting sex-based rights "from the Gender Cult."