Biden Faces Lawsuit from State and Women’s Groups Regarding Title IX Changes

Biden admin rule replaces ‘sex’ with ‘gender identity’ and classifies ‘misgendering’ as sexual harassment

Red states and women’s groups hit President Joe Biden with four lawsuits Monday and Tuesday over his overhaul of the federal Title IX ban on sex discrimination in schools and universities. The rule, slated to take effect August 1, replaces sex with gender identity in what the lawsuits say will allow males into female spaces and could punish staff or students who “misgender” a trans-identifying colleague or peer.

“Forcing a young girl to change clothes in front of a boy or man in a locker room is entirely antithetical to the dignity and respect that Title IX was intended to preserve and advance,” a complaint from Louisiana, Mississippi, Montana, and Idaho says. “So, too, is forcing children of opposite sexes to share adjoining stalls in the traditionally private space of a bathroom. These are not close questions.”

The lawsuits allege that Biden’s regulation violates free speech rights, given that it renders as sex-based harassment the refusal to call trans-identifying students by their chosen names and pronouns, or the guarantee of single-sex bathrooms, locker rooms, or activities. They argue it also represents administrative overreach, since the policy unilaterally overrides Congress’s original sex-based protections. Texas, which filed its own complaint, notes the policy can only be enforced subjectively, since “anyone who may even only temporarily or intermittently … identify” as transgender can claim it as grounds for complaints.

The court battles come as additional lawsuits and controversies pile up around the country to challenge the same “gender identity” policies that Biden wants to take nationwide. College female athletes are suing the NCAA over its policies to allow trans-identifying males to compete in women’s sports. In West Virginia, middle school girls who refused to compete against a trans-identifying male in a track-and-field meet to protest unfairness have been blocked from future competitions—spurring a lawsuit from the state’s attorney general to support the girls.

In Virginia, meanwhile, parents of a girl who was sexually assaulted by a teen boy in her high school bathroom filed a $30 million civil rights lawsuit against the district where it happened. In Colorado, parents whose 11-year-old daughter was forced to share a bed with a boy on an overnight field trip have filed legal letters demanding answers from the school.

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, noted that the lawsuits will likely deal a blow to the Biden administration, given the seriousness of the allegations and the fact they’re filed in federal courts—such as Texas and Alabama—that are “likely to give them a fair shake.”

“I think there will be rulings adverse to the government,” Shapiro said. “I think there are very strong claims about the various redefinitions under Title IX-expansion of what sex-based discrimination is, and the changes in due process, and the chilling of speech. All three of those aspects are in serious legal jeopardy.”

Biden’s regulation would revamp Congress’s original ban on sex discrimination to encompass discrimination based on “sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity.” Schools or universities that don’t allow students into the sex-segregated locker rooms, restrooms, or activity of their choice based on gender identity would lose federal funding. Harassment punishable under Title IX would include “misgendering” anyone who claims a new gender identity. It also limits legal defenses for those accused of sexual harassment.

The rule has been in the works since the start of Biden’s term in office and promotes ideas that are nationally unpopular among voters of both parties. A Gallup poll from last year, for example, found that 69 percent of Americans think athletes should compete on teams that match their sex, not gender identity. More than 240,000 groups and people wrote to the administration about the policy after it was proposed, with most registering their dismay.

Shapiro said this contentiousness likely explains why it took so long for Biden to release the final version—and also why he didn’t wait until the eve of the election.

“It’s not a vote-getting mechanism—it’s just something the administration or enough of the relevant decision makers are committed to, and want to use their powers for,” he said.

A spokesman for the Department of Education declined to comment on pending litigation, but said the agency “crafted the final Title IX regulations following a rigorous process.”

“As a condition of receiving federal funds, all federally-funded schools are obligated to comply with these final regulations and we look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience,” he said.

On Monday, White House press secretary Karine Jean-Pierre addressed the controversial rule by saying “every student deserves a right to feel safe in school.”