The Wisconsin Institute of Law and Liberty (WILL) recently released a report outlining the impact of the new Title IX rule implemented by the U.S. Department of Education under the Biden Administration. This rule expands the definition of sex discrimination to include gender identity, conflicting with the original intent of Title IX, which focused on ensuring equal opportunities and safety for women and girls. The updated rule, took effect on August 1, 2024, faces multiple legal challenges, including several federal injunctions.

 Overview of Title IX and Recent Changes

Title IX, part of the Education Amendments of 1972, prohibits sex-based discrimination in federally funded education programs. It was originally designed to promote equal opportunities for women and protect their safety and privacy, allowing for sex-segregated programs where necessary. However, the new rule broadens the scope of sex discrimination to include sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity. This reinterpretation has sparked significant legal disputes, with at least nine federal lawsuits filed to challenge its legality.

So far, three federal court injunctions have put the rule on hold in several states, but these injunctions are limited to specific parties, such as Young America’s Foundation, Female Athletes United, and members of Moms for Liberty. Other lawsuits continue, and the issue is likely to reach the U.S. Supreme Court. 

 Implications for School Boards

School boards are under pressure to implement the new rule, but they face potential litigation regardless of the decision they make. WILL advises school boards to consider the legal risks before making changes. Implementation could lead to investigations by the Office of Civil Rights (OCR), complaints from individuals, or even the loss of federal funding. While the federal government has never revoked funding due to non-compliance with Title IX, the possibility exists.

If a school district decides to delay compliance, OCR can initiate investigations, which often take 6-12 months to conclude. If a school is found to be non-compliant, the resolution process typically involves negotiation with federal authorities to avoid loss of funding. In some cases, the Department of Justice may intervene to enforce compliance.

 Potential Legal Risks

The new rule raises concerns about compelled speech, as it may require staff to use individuals’ preferred pronouns, treating refusal as sexual harassment. Additionally, schools could face lawsuits from parents or community members who oppose these policies, arguing that they violate civil rights or safety standards. At the same time, non-compliance could result in federal investigations and potential penalties.

WILL asserts that the Biden Administration lacks the necessary Congressional authorization to implement such a rule, particularly one with significant economic and political consequences. The rule’s inclusion of gender identity in the definition of sex discrimination contradicts the statutory language of Title IX. The broad reach of the new rule also impacts extracurricular activities, including athletics, although the Department of Education maintains that it does not apply to sports. An athletics-specific rule proposed in 2023 has been indefinitely delayed, further complicating compliance for schools.

 Strategic Considerations for School Boards

WILL recommends that school boards consider adopting policies that comply with existing Title IX law while accommodating biological sex in private facilities, with optional gender-neutral facilities where possible.

School boards are encouraged to be transparent in their decision-making, taking into account legal opinions, community feedback, and state directives. Litigation risks exist on both sides, and schools must balance federal requirements with local community standards and legal challenges.

 Conclusion

The ongoing litigation and potential for nationwide injunctions make the future of the new Title IX rule uncertain. School boards should stay informed and consult legal counsel to navigate the complexities of compliance. WILL emphasizes that the decision ultimately lies with the school boards, and they should prioritize student safety and legal compliance while awaiting final court rulings.

For more details on legal guidance and compliance, please refer to WILL’s January 2024 memo and future resources on this evolving issue.