As we approach the 2022-23 school year, people are trying to understand proposed changes to Title IX of the Education Amendments Act of 1972, which expanded the definition of "sex" to include "sexual orientation and gender identity". This has caused a significant amount of confusion, so I decided to unpack it all.
At the core of this all is the method by which the Department of Education (DOE) has gone about modifying Title IX: Bostock v. Clayton County.
The Bostock Case
On June 15, 2020, the SCOTUS held in Bostock v. Clayton County that sex discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and transgender status.
Though Title VII and Title IX are two distinct statutes, their statutory prohibitions against sex discrimination are similar, such that Title VII jurisprudence is frequently used as a guide to inform Title IX.
Reference: https://www.justice.gov/crt/title-ix#Bostock
However, in writing for the majority opinion in the Bostock case, Justice Gorsuch was specific in the limitations being applied to employment and hiring practices. He wrote:
“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,”
Gorsuch continued, “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”
So which is it? Rule? Law? Other?
It's complicated. The ink is far from dry on this one. 26 states attorneys generals are suing the Biden Administration (letter). 15 Governors are calling on the Administration to stop deployment of this reinterpretation. The argument is that federal agencies such as the DOE and USDA's Food Nutrition Service do not have the authority to penalize and withhold federal funds from Title IX Food and Nutrition Act recipients.
As for Wisconsin State Statute, Pupil Discrimination is defined in 118.13(1), and "sex" has not been redefined. So if the Title IX proposals are not adopted we would then defer to our state statute, which reads:
Except as provided in s. 120.13 (37m), no person may be denied admission to any public school or be denied participation in, be denied the benefits of or be discriminated against in any curricular, extracurricular, pupil services, recreational or other program or activity because of the person's sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability.
Are there any other considerations?
Yes. Less than two months after the SCOTUS issued its ruling that reined in EPA’s authority to regulate power plant emissions, West Virginia v. EPA is already being used to shape legal battles over federal oversight on a range of issues from nuclear waste storage to LGBTQ+ rights. For decades, agencies have had far too much power and it is time to return the power back to Congress, whether they want it or not. That's their job.
What if this passes?
I'll defer to a post from the Heritage Foundation to explain some of that.
What can you do?
Participate! Public Comment on the proposed Title IX changes is open until September 12th, 2022.
https://www.regulations.gov/document/ED-2021-OCR-0166-0001
Related Articles
Parents Defending Education, Title IX - What you need to know & how to get involved
WASB, August 2022, Proposed Revisions to Title IX Regulations are now open for review and comment https://wasb.org/wp-content/uploads/2022/07/PP_2022-08.pdf
August 4th, 2022, Almost two dozen states sue Biden admnistration over Title IX gender identity guidance
July 27th, 2022, State Attorneys General Challenge Biden Admin's 'Gender Identity' Policies
July 21st, Heritage Foundation, Federal Judge Blocks Biden's Attempt to Reinterpret Discrimination Laws
June 22nd, 2022, Heritage Foundation, The Department of Education’s Intended Revision of Title IX Fails Regulatory and Civil Rights Analyses
