Explaining the debate over Title IX sexual orientation and gender regulations

Recent injunctions from several federal judges have blocked the Department of Education from fully implementing new Title IX rules related to sexual orientation and gender identity discrimination in federally funded schools. What are the origins of the Title IX debate and the current lawsuits over it?

In April 2024, the Department of Education issued a final set of regulations after a public comment period: “The final regulations advance Title IX’s promise of ensuring that no person experiences sex discrimination, including sex-based harassment or sexual violence, in federally funded education,” the department said. The new regulations included protections “against discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics.”

The regulations were set to go into effect on Aug. 1, 2024. Publicly funded secondary schools and higher-education institutions could face civil lawsuits and the loss of federal funds if they do not comply with the new Title IX rules, if required. But multiple lawsuits were filed soon after the rule changes were published, resulting in injunctions. The final Title IX rules are now blocked from going into effect in 26 states.

In one case, on July 31, 2024, the 11th Circuit Court of Appeals issued an injunction blocking the Title IX rule from going into effect in Alabama, Florida, South Carolina, and Georgia. Solicitor General Elizabeth Prelogar had already petitioned the Supreme Court to allow portions of the final rules to go into effect in the Fifth Circuit and Sixth Circuit after judges issued similar injunctions.

The Bostock Precedent

Prelogar asked the Supreme Court to consider the Title IX question in the light of its 2020 ruling in Bostock v. Clayton County. In a 6-3 decision, the Court in a majority decision written by Justice Neil Gorsuch ruled that Title VII of the Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” also prohibits discrimination based on an individual’s sexual orientation.

Since 2020, the Department of Education has relied on Bostock to add similar protections to Title IX of the Education Amendments of 1972. In a fact sheet accompanying its April 2024 regulations, the department noted that “the rule prohibits discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs, applying the reasoning of the Supreme Court’s ruling in Bostock v. Clayton County.”

However, some federal judges have questioned the extension of Bostock to the educational environment. On July 2, 2024, John Broomes, United States District Judge for the District of Kansas, issued an injunction against the final Title IX rule. The plaintiffs included Kansas, Alaska, Utah, and Wyoming, and three organizations: Moms for Liberty, Young America’s Foundation, and Female Athletes United.

Broomes noted that while the Department of Education repeatedly referenced Bostock in final rules, it acknowledged that “that the Supreme Court expressly stated that its decision in Bostock was only applicable to Title VII,” yet the department “relies on that decision for authority to promulgate the new regulations.”

Groome also cited his ability to interpret the new Title IX rule under the Administrative Procedures Act (or APA) and the Supreme Court’s new precedent in Loper Bright Enterprises v. Raimondo. “The Supreme Court recently held that the court ‘need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous. … The court must exercise its ‘independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.’”

Other Cases and Injunctions

On June 13, 2024, Chief Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana issued an injunction that kept the Title IX changes from going into effect in Louisiana, Mississippi, Montana and Idaho. Doughty wrote that the application of Bostock to the Department of Education’s final Title IX rule was not straightforward because the Supreme Court did not rule that Bostock applied to other federal laws, and there was already a split among the lower courts on the question.

On July 17, 2024, the Sixth Circuit Court of Appeals left an injunction in place against the final Title IX rule. Chief Judge Jeffrey Sutton said that “Title VII’s definition of sex discrimination under Bostock simply does not mean the same thing for other anti-discrimination mandates, whether under the Equal Protection Clause, Title VI, or Title IX.” On July 18, 2024, the Fifth Circuit Court of Appeals denied a partial stay of its injunction on the final Title IX rule. And on July 12, 2024, a federal district court in Texas upheld an injunction. District Judge Reed O’Connor thought the final rule had “no basis in reality.”

But several other courts have come to the opposite conclusion about Title IX and its ability to allow students to use bathrooms and locker rooms based on their gender identity.

On Aug. 3, 2023, the Seventh Circuit Court of Appeals upheld an injunction that allowed three transgender boys to access boys’ bathrooms, and in two cases, boys’ locker rooms. “Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes, just as it is for Title VII purposes,” said Circuit Judge Diane Wood.

In Grimm v. Gloucester County School Board, a divided Fourth Circuit Court of Appeals ruled in August 2020 in favor of former high school student Gavin Grimm. In 2015, Grimm sued his school board when as a transgender student he was denied the use of a bathroom related to his gender identify. Over a five-year period, Grimm’s case made it to the Supreme Court and eventually returned to the Fourth Circuit.

“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes,” wrote Circuit Judge Henry C. Floyd. “After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’”

Floyd believed Congress had intended Title IX to be based on Title VII, citing a unanimous Supreme Court decision from 2009, Fitzgerald v. Barnstable School Committee, regarding a sexual harassment and unconstitutional gender discrimination claim brought by a student against a school board under Title IX. In the Court’s opinion, Justice Samuel Alito said that “Congress modeled Title IX after Title VI of the Civil Rights Act of 1964, and passed Title IX with the explicit understanding that it would be interpreted as Title VI was.”

Another case Floyd cited was Doe v. Boyertown Area School District (2018) from the Third Circuit Court of Appeals. Boyertown had allowed transgender students to use bathrooms and locker rooms based on their gender identity. A group of students with the same sex as associated with their birth (identified by the court as cisgender) sued. The students claimed they were affected by Title IX violations caused by the school district’s policy, but the court ruled against their claims of privacy violations.

“The presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX,” the Third Circuit concluded.

“The touchstone of both Title VII and Title IX claims is disparate treatment based on sex. The School District’s policy allows all students to use bathrooms and locker rooms that align with their gender identity. It does not discriminate based on sex, and therefore does not offend Title IX,” said Judge Theodore McKee in the Boyertown decision. The Supreme Court did not accept an appeal for the case.

For now, public school districts and colleges face an unsettled future implementing the new Title IX rules as the legal landscape shifts. At some point, the Supreme Court will probably address the issue. Prelogar’s appeals for a partial stay in July remain on the Court’s emergency docket.

Scott Bomboy is the editor in chief of the National Constitution Center.