EDITOR'S NOTE: This story originally appeared in Higher Ed Dive.
Twenty predominantly conservative states suing the U.S. Department of Education over its legal interpretation of Title IX — that the federal anti-discrimination law protects individuals based on their gender identity and sexual orientation — again on Monday asked a federal court to block the agency from enforcing that guidance.
The states, led by Tennessee, filed their lawsuit last year, alleging the interpretation conflicted with the Constitution, federal law and regulatory practices. They argued the department had overextended the intent of Title IX, which protects against sex-based discrimination in schools and colleges. The states in September requested a federal court enforce a preliminary injunction against the Education Department’s policy, which it released in June 2021.
In new court filings Monday, the states again pressed the court to restrict the Education Department’s policy, an action they said is necessary to shield their citizens from “continued federal threats.” They cited the Education Department’s draft regulation on Title IX issued last week, which would expand the scope of sexual misconduct cases colleges would be required to investigate and would offer new safeguards for LGBTQ students.
The states said the department is relying on the legal interpretation to support the new regulatory proposal.
One of President Joe Biden’s first executive orders affirmed that sexual orientation and gender identity are protected classes under federal sex discrimination laws.
In that order, he directed federal agencies to review whether their policies and rules complied with this interpretation, citing a landmark U.S. Supreme Court decision, Bostock v. Clayton County, that established LGBTQ protections in federal employment law. Subsequently, the Education Department in June 2021 issued a public notice that it considered gay and transgender individuals to be shielded from discrimination under Title IX.
Bostock focused on Title VII, the anti-discrimination employment law, which contains language akin to Title IX’s.
But these similarities did not persuade some Republican state attorneys general, who in July 2021 wrote to Biden saying the administration’s interpretations “misconstrued federal law.” All of the states that signed onto the July letter, except for Texas, are plaintiffs in the lawsuit.
They are arguing the department did not pursue proper regulatory procedures when it announced its reading of Title IX in June 2021.