21 Attorneys General Push Back on Biden’s Reinterpretation of Title IX

21 Attorneys General Push Back on Biden’s Reinterpretation of Title IX
portrait of Anne Dennon
By Anne Dennon

Published on July 29, 2021

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The Biden administration intends to overhaul the Title IX rules that dictate school sports, school bathrooms, and how schools address student sexual assault.

The Trump administration's Title IX rewrite, which specifically addressed sexual misconduct, became law just five months ago — the first full rulemaking on a major Title IX issue since 1975, according to the Brookings Institution.

While the Department of Education (ED) kicks off an official review of the court-affirmed sexual misconduct rules, it and the Equal Employment Opportunity Commission (EEOC) issued guidance for schools and employers that interprets "sexual harassment" to include "anti-LGBTQI+ harassment."

A 2020 Supreme Court ruling, Bostock v. Clayton County, extended Title VII to protect employees from discrimination based on being gay or transgender.

Citing Bostock, the Department of Education said in a letter that it intends to "fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities."

Twenty-one Republican state attorneys general wrote to President Joe Biden, arguing the administration has gone beyond interpreting Title IX and instead seeks to rewrite it without going through proper legal channels.

While the "Dear Educator" letter and a fact sheet distributed by the departments of Education and Justice do not have legal authority, they demonstrate that the Justice Department's Office for Civil Rights will investigate and enforce Title IX claims of discrimination based on LGBTQ+ status.

Republicans Push Back on Title IX Reinterpretation

The Biden administration's interpretation of Title IX reverses Trump-era policy that governs which teams and locker rooms transgender students are allowed to join and use.

The attorneys general say Title IX "squarely contradicts ED's interpretation by explicitly allowing for differential treatment based on sex in some circumstances," such as sex-separate facilities.

They attorneys allege the guidance "fundamentally misconstrues and improperly extends Bostock," saying the Supreme Court decision "explicitly refrained from addressing sex-segregated bathrooms, locker rooms, and dress codes."

The coalition holds that the court "decided the case narrowly, specifically refusing to extend its holding to Title IX and other differently drafted statutes."

A spokesperson for the ED referred a request for comment to the EEOC. An EEOC spokesperson told Higher Ed Dive in an emailed statement the agency "routinely provides technical assistance to assist the public in understanding" the laws it enforces.

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