When Congress enacted Title IX, it prohibited discrimination based upon sex in federally funded education programs and activities (subject to some important exceptions). In enacting Title IX, Congress statutorily removed obstacles precluding women, based on their sex, from participating in educational opportunities. 20 U.S.C. §1681, et seq. Here, Title IX provides that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…. 20 U.S.C. §1681(a).
U.S. Department of Education Enacts New Rules under Title IX redefining sex to eventually allow men to use women’s bathrooms, showers, dorm rooms, etc.
In the spring of 2024 the U.S. Department of Education (ED) published a final rule redefining sex under Title IX to include sexual orientation and gender identity. (Go HERE to see our analysis opposing this rule). Ignoring the law and rejecting biological truth, the new rule deems that a school policy violates Title IX if it prevents a student’s participation in programs consistent with their subjective self-determined gender identity.
Parents Respond
Numerous parents, school districts, and states immediately filed legal challenges to the ED’s new rule. These legal challenges resulted in preliminary injunctions stopping enforcement of the rule in half the states, along with many other school districts in the other states.
School Boards can be Held Accountable by Courts
Schools are now passing new rules pursuant to the ED’s new rule, even though Federal Courts have enjoined institutions from doing so (given that ED enacted the rule without constitutional or statutory authority). The U.S. Court of Appeals for the 6th Circuit upheld an injunction enjoining the U.S. Department of Education from enforcing its new Rule in Tennessee. The 6th Circuit’s jurisdiction includes Michigan, but the injunction in this case applies only to Tennessee schools at this time. The United States District Court for the District of Kansas though, also enjoined the ED’s enforcement of its new Title IX rule — and the injunction includes Michigan schools with parent-members of the group suing the Department of Ed.
Until the courts finally resolve this matter school districts should not change any school policies, and indeed may be prohibited by Court Order from doing so.
School Boards Cannot Trust Calls to Cancel Biological Truth
School Boards ought to approach with caution cultural calls to cancel objective biological science in the context of statutes like Title IX. Medical experts in Europe now recognize that the “use of masculinizing / feminizing hormones … present many unknowns….” Independent Review of Gender Identity Services for Children and Young People, Final Report to NHS ENGLAND. Indeed, the “strengths and weaknesses of the evidence … are often misrepresented and overstated, both in scientific publications and social debate.” Id. While “a considerable amount of research has been published in this field, systematic evidence reviews demonstrated the poor quality of the published studies, meaning there is not a reliable evidence base upon which to make clinical decisions, or … to make informed choices.” Id. Moreover, elevating self-identifying subjective gender fluidity over the objective biological truth that sex is immutable results in the unfair and unjust outcomes for female students (e.g. athletes). See, Women’s Sports Policy Working Group, Male Victories in Female Sports.
Male students continue to self-identify as female. Subjectively fluid gender identity formulations continue to collide with objective biological science showing sex as immutable. And federal courts continue to split over whether to choose truth or fiction in resolving these cases and controversies arising under the Constitution and laws of the United States. The pending cases provide the opportunity for the Courts to resolve the significant legal Title IX questions, and restore some sanity to this nation’s educational institutions.
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