Federal Government’s Title IX Guidance Halted – For Now

Written by: Daniel L. Lautar, Esq.

The federal government’s guidance to schools on addressing sexual orientation and gender identity issues among students and staff has been put on hold, for now.  On July 15, 2022, the U.S. District Court for the Eastern District of Tennessee issued a preliminary injunction barring the federal government from implementing its recently published guidance on sexual harassment under Title IX in 20 states, including Ohio.  Title IX is the federal law that prohibits sex-based discrimination in any school that receives funding from the federal government.  The guidance came from the U.S. Department of Education and the Equal Employment Opportunity Commission (“EEOC”) and indicates that both entities interpret Title IX as prohibiting discrimination based on sexual orientation and gender identity in education programs and activities.  This interpretation was based on the U.S. Supreme Court’s reasoning in Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), a case which concerned Title VII, not Title IX.  Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.

In Bostock, the Supreme Court determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” in violation of Title VII.  Id.  At the urging of the Biden Administration, the Department of Education and the EEOC applied this same logic to Title IX’s prohibition against harassment “on the basis of sex.”  The guidance issued by the Department of Education and EEOC included statements that students should be allowed to use the bathroom that aligns with their gender identity, that students should be allowed to participate on a sports team consistent with their gender identity, rather than biological sex, and that employers cannot use the wrong name and pronouns to refer to a transgender employee.  This guidance conflicted with statutes in Tennessee and other states related to sexual orientation and gender identity, thereby placing those states’ access to federal funding at risk.

On August 30, 2021, the State of Tennessee, joined by 19 other states including Ohio, filed a complaint in the U.S. District Court challenging the legality of the guidance, arguing that it was not merely an interpretation of existing law, but rather that it amounted to legislative rules which create new rights and obligations by improperly expanding the reach of Bostock to Title IX.  Consequently, the Plaintiffs argued that the guidance should have been subject to the federal Administrative Procedure Act (“APA”), which neither the guidance from the Department of Education nor EEOC complied with.  The APA governs the process by which federal agencies develop and issue regulations, provides opportunities for the public to comment on notices of proposed rulemaking, and requires most rules to have a delayed effective date.

The U.S. District Court for the Eastern District of Tennessee sided with the Plaintiffs, finding that the Bostock decision only addressed sex discrimination under Title VII, and that the U.S. Supreme Court expressly declined to “prejudge” how its holding would apply to “other federal or state laws that prohibit sex discrimination,” such as Title IX.  The court found that the guidance issued by the Department of Education and EEOC, which provided that Title IX prohibited discrimination on the basis of gender identity or sexual orientation, consistent with Bostock, amounted to a new interpretation of Title IX and imposed new legal obligations on schools.  As such, the guidance documents constituted final agency action subject to judicial review under the APA.

The court therefore granted Tennessee’s motion for a preliminary injunction, preventing the Department of Education and the EEOC from implementing the guidance in the 20 states that filed the lawsuit.  The preliminary injunction remains effective pending the final resolution of the matter, or until further orders are issued by that court, the United States Court of Appeals for the Sixth Circuit (of which Ohio is a member), or the Supreme Court of the United States.

While the U.S. Department of Education and the EEOC may be prohibited from enforcing their guidance on Title IX in Ohio, the U.S. Department of Education has followed the requirements of the APA to develop new regulations for the enforcement of Title IX.  A draft of those regulations was released to the public on June 23, 2022.  The proposed new regulations define prohibited “sex-based harassment” as including sexual harassment, harassment on the basis of stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.  Thus, if the Department of Education’s proposed Title IX regulations take effect in their current form, they will achieve the same result sought by the halted Title IX guidance, i.e., using Title IX to prohibit discrimination based on sexual orientation and gender identity.

The injunction does not prevent Ohio school districts from treating students consistent with their gender identity, and any policies, procedures, or practices to that effect which are currently in place do not need to be changed.  Boards of education are advised to review their policy manuals to determine whether any revisions concerning the scope and application of their Title IX policy will be necessary in the event that the injunction is lifted.  Pepple & Waggoner is following the development of the new Title IX regulations closely and will provide its clients with updates about their status as it unfolds.

Daniel L. Lautar may be reached at DLautar@pepple-waggoner.com.

Follow on Twitter @DanLautar