Article By: Associate Attorney Mario Perez
If you live in the school administration world, by now you’ve heard of the Biden administration’s release of the new Title IX regulations. The new rules have been met with praise and criticism. Some who praise the new rules believe that they will make educational institutions more inclusive and reduce discrimination against some students. To the critics, such as Texas Governor, Greg Abbott, the administration is redefining Title IX’s meaning of “sex” to push a leftist agenda that seeks to undermine Title IX’s original goal of ensuring an equal educational opportunity for women. Indeed, in an April 29, 2024 letter, Governor Abbott warned President Biden that the Texas Education Agency would ignore Title IX, describing it as an “illegal dictate.” Much of the debate, if not probably the most heated aspects of it, are centered around Title IX’s definition of “sex” and whether that definition includes, for example, gender identity, sexual orientation, and transgender status. Under the new rules, the answer is clear: § 106.10 of the new rules provide that “[d]iscrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy, or related conditions, sexual orientation, and gender identity.” But is this definition really, as Governor Abbott described it, redefining the term “sex”?
If you’ve been keeping up with U.S. Supreme Court cases touching upon gender and sexuality, perhaps the word Bostock may ring a bell. Bostock is a 2019 case that went up to the U.S. Supreme Court. In that case, Gerald Bostock, a gay man, was an employee of Clayton County, Georgia. Mr. Bostock’s issues with Clayton County began after he started playing in a gay recreational softball league. According to the facts presented in the case, Mr. Bostock began receiving open criticism at work for playing in the league and for his sexual orientation and sexual identity. Around the same time, the County began an internal audit of the program funds Mr. Bostock managed as part of his employment. Shortly thereafter, the County terminated Mr. Bostock for “conduct unbecoming of its employees.” After his termination, Mr. Bostock filed a charge with the Equal Employment Opportunity Commission and eventually a lawsuit in federal district court under Title VII, which prohibits discrimination on the basis of sex in the workplace. At the district court, the lawsuit was dismissed, with the court holding that Title VII did not cover discrimination on the basis of sexual orientation and sexual identity. On appeal, Mr. Bostock again lost. Eventually, the case made it to the U.S. Supreme Court.
The U.S. Supreme Court framed the issue as follows: Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation? The Court examined Title VII’s text and legislative history.. The Court acknowledged that few would have expected Title VII to apply to discrimination against homosexual and transgender persons in 1964, when Title VII was enacted into law. However, the Court posed the following scenario: if an employer fires a male employee for wearing a dress, but does not fire a female employee for wearing a dress, isn’t the male employee being treated differently because of his sex? In other words, because the employer would not have terminated the male employee for wearing a dress if he were a female, this is discrimination on the basis of sex. The Court agreed with Mr. Bostock’s interpretation and ordered the case back to the trial court for further proceedings. The importance of the Bostock case to the viability of the new Title IX rules cannot be understated. Indeed, in the new rules, the Department of Education mentions Bostock almost seventy times.
The same day of Governor Abbott’s correspondence to President Biden, Texas Attorney General, Ken Paxton, filed suit against the Biden administration over the new Title IX rules. According to Mr. Paxton, Bostock does not require, or even allow, for an interpretation of Title IX that includes concepts such as gender identity. In Bostock, Mr. Paxton argues, the Court assumed that the term “sex” means biological distinctions between female and male, and made clear that its decision in Bostock was not mean to extend to other federal laws that prohibit discrimination. Another argument Mr. Paxton raises is an argument often seen in challenges against an expansive definition of “sex” under Title IX: at 20 U.S.C. § 1681(a), Title IX explicitly authorizes separation based on sex in certain situations, including “maintaining separate living facilities for the different sexes,” 20 U.S.C. § 1686, and specified single-sex educational institutions, organizations, activities, and scholarship awards, 20 U.S.C. § 1681(a). Thus, the argument goes, Title IX presumes that “sex” means biological sex.
How far Mr. Paxton’s lawsuit will go is hard to tell. The case was filed in the Amarillo Division of the Northern District of Texas, a federal court. This is not Mr. Paxton’s first foray into the Amarillo Division to sue President Biden. A large part of the cases filed by Mr. Paxton’s office against President Biden are filed in the Amarillo Division. In fact, in previous cases filed in such court, the administration has alleged that Mr. Paxton is engaging in “judge shopping” and filing in the Amarillo Division because most of the cases are assigned to Judge Matthew Kacsmaryk, who was appointed by President Trump. Other notable previous cases filed by Mr. Paxton’s office in Judge Kacsmaryk’s court include the so-called “Remain in Mexico” case, where Texas sued the administration to require re-implementation of the Trump era “Remain in Mexico” rule (Judge Kacsmaryk ruled in favor of Mr. Paxton); the lawsuit against the administration concerning ESG investing—also known as impact or sustainable investing (Judge Kacsmaryk ruled in favor of the administration); and the lawsuit against the administration over guidelines requiring employers to provide protections for LGBTQ employee (Judge Kacsmaryk ruled in favor of Mr. Paxton). Of Mr. Paxton’s 26 challenges to the Biden administration, seven were filed before Judge Kacsmaryk. I suppose time will tell, but the odds seem to be in Mr. Paxton’s favor.
