How end of Chevron deference could hurt Biden Title IX overhaul

When the Supreme Court overruled Chevron deference on Friday, it may have also stripped the Biden administration’s only line of defense for overhauling Title IX, experts say.

The Title IX rewrite, which is set to take effect Aug. 1, redefined sex to include expansive claims of gender identity and, many critics say, foreclosed sex-specific facilities in schools such as restrooms and locker rooms. However, with the overturn of Chevron, the Biden administration may have lost the only way it could have defended the highly controversial rules governing the civil rights law.

“For a multitude of reasons, all of the Title IX litigants are virtually guaranteed success by the Supreme Court, but with Chevron‘s death knell, I would say that that is now doubly virtually guaranteed: Any deference that would have been automatically given to the Biden administration has just been completely eliminated,” Sarah Parshall Perry, senior legal fellow at the Heritage Foundation, told the Washington Examiner.

The Title IX overhaul by the Department of Education is being challenged in court by 26 states through multiple lawsuits and has been blocked in 10 so far. Under Chevron, executive agencies were given deference by courts to their interpretations of “silent or ambiguous” statutes, but now courts will once again have the authority to interpret whether an agency has overstepped the meaning of the law rather than allowing agencies to define statutes for themselves.

Prior to Title IX being finalized and Chevron being overturned, the Alliance Defending Freedom filed an amicus brief in Loper Bright Enterprises v. Raimondo, the Supreme Court case that overturned Chevron, arguing Chevron would have been used to defend the redefined statute, saying, “The agency will likely inevitably [invoke] Chevron deference” in its legal defense of the new Title IX.

“No court should be forced by Chevron to defer to the Department’s claim that Title IX means the opposite of what it says,” the brief stated. “The statute deals with discrimination on the basis of sex, not gender identity, and Title IX’s direct reference to a male-female binary excludes any gender identity interpretation.”

Such deference, ADF argued, would have allowed the government to invoke harm on women and girls who would be forced to compete against males, compel speech through requiring teachers and students to use programs and names that are not consistent with biological sex, or have schools facilitate child gender transitions without the knowledge or consent of parents.

“As things stand, Chevron remains a shield for executive-branch officials seeking to impose these harms,” the ADF brief said.

Perry said the Biden administration was relying on an argument that Title IX, a 37-word statute meant to protect women’s educational opportunities, was ambiguous, as Biden administration officials believe sex could mean any multitude of things.

Chevron deference has only been invoked one time by the Department of Education, in a 2007 case regarding the distribution of federal impact aid, but it has reentered the conversation amid all the changes the Biden administration made to Title IX.

“Conceivably, the only reason that it’s never been invoked is because the Department of Education has never taken such extensive liberties within an illegal interpretation of the law,” Perry said, calling the overturn of Chevron as it relates to Title IX a “form of insurance” in the success of the legal challenges.

Moreover, U.S. District Judge Danny C. Reeves, in granting a block to the Title IX rules for Tennessee, Indiana, Kentucky, Ohio, Virginia, and West Virginia, took Chevron head-on, arguing that the new rules were so far outside the boundaries of the statute that Chevron could not likely save them either.

“An agency has no authority to promulgate a regulation that undoes the unambiguous language of the statute,” Reeves wrote before the overturn of Chevron.

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In overturning the precedent, Perry said the nation’s high court “may have actually taken it with an eye toward the fact that this administration has been out over its skis and acted illegally time and time again.”

Citing occasions the Supreme Court has overruled instances of the Biden administration’s use of authority prior to dismantling Chevron, such as in the case of the vaccine mandate from the Occupational Safety and Health Administration, the eviction moratorium from the Department of Housing and Urban Development, or emissions caps from the Environmental Protection Agency, Perry said when a Title IX challenge eventually reaches the high court, the justices are “now going to take this interpretation of Title IX, and I don’t see how any justice, including the liberals, can straight-faced argue that the Biden administration’s interpretation of Title IX is accurate.”

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