Bostock v. Clayton & Title IX
On his first day as president, Biden issued an executive order (EO) in response to the Bostock v. Clayton County decision, focused on “preventing and combating discrimination on the basis of gender identity or sexual orientation.” In response to that EO, Department of Education (DoED) issued a written “Notice of Interpretation” of Title IX, the federal law that prohibits sex discrimination in education programs that receive federal funds. It laid out that DoED will interpret Title IX as prohibiting discrimination based on gender identity and sexual orientation. The DoED also sent a letter and fact sheet to education officials. This interpretation reversed a Trump administration interpretation that claimed that Bostock had no effect on Title IX. Note that religiously affiliated schools subject to Title IX have the right to claim a religious exemption.
Twenty states sued to halt enforcement of the guidance. In July 2022, the judge issued a preliminary injunction in the case of State of Tennessee v. US Department of Education. The court determined that the federal government did not comply with the Administrative Procedures Act’s notice and comment process before issuing guidance and that they would not be able to enforce their own state laws.
The DoED is currently considering a proposed Title IX rule. Once that regulation is issued, it may clear up concerns laid out by the court, but there will be a new challenge mounted against the regulation.
The American Civil Liberties Union (ACLU) and other civil rights groups are actively targeting and litigating against local schools and other institutions on this issue. Example: ACLU calls for probes into two Texas school districts’ anti-trans policies | The Texas Tribune
