Inviting Title IX Lawsuits

The Department of Education’s new Title IX regulations become effective August 1, 2024. Not surprisingly, they have already garnered numerous lawsuits. These highly partisan regulations essentially reissue the Obama administration’s attempts to mandate a parallel justice system for adjudicating campus peer sexual misconduct, as well as other policies that redefined “sex” to include “gender identity.” These earlier attempts were quickly repealed by the Trump administration but set a precedent for unprecedented executive action.

Universities are scrambling to decide whether to comply with the Department of Education’s mandates or with the laws of their respective states, and will face investigations and litigation no matter what they do.

Constitutional Means and Ends

The legal difficulties in the new regulations include the redefinition of “sex” and “sex discrimination” to include gender identity and sexual orientation and the expansion of “sex-based harassment” to include “subjective” judgment. The guidelines also reduce the requirement that misconduct be “severe and pervasive” to be considered sexual harassment, now stating that the actions be either “severe or pervasive” (emphasis added). The Biden administration has yet to release a planned guidance on athletics, so colleges and universities must in the meantime defer to the 2024 rule. The greatest trigger for lawsuits after August, however, has been and will be the removal of certain due process protections for those accused of peer sexual misconduct, protections that had been codified in the 2020 formal regulations.

The 2024 terminology and investigation procedures are inconsistent with the statutory text and goals of Title IX and will therefore only lead to perpetual legal challenges. Currently, most of the state lawsuits focus on the redefinition of “sex” to include gender identity and sexual orientation, but others target the weakened due process protections. Ultimately, the Supreme Court will likely need to address both the redefinition of sex and the due process changes, but only after years of tumult.

Formal regulations created by executive agencies like the Office for Civil Rights (OCR), the agency tasked with enforcing Title IX, are not the same as law. In general, they deserve deference and respect as if they were law, as long as they are implemented through what William E. Thro and I term “constitutionally legal means and ends.” There are three constitutionally legal means of altering a statute like Title IX, including Congress passing a statutory amendment, the relevant executive agency proposing formal regulations compliant with the Administrative Procedures Act (APA), or federal judges interpreting the law in accordance with its statutory text and the United States Constitution.

While the APA process is necessary, it is not sufficient to ensure appropriate guardrails to limit executive agency action. Regulations must pursue constitutionally legitimate end goals. Thro and I argue that substantive changes to a statute must also comply with the US Constitution, be consistent with Supreme Court interpretations of the text, and comport with relevant legal precedents. Finally, executive action must meet the criteria set by the Major Questions Doctrine, which requires administrative agencies to have clearly-granted authority to make substantive changes to the statutory text.

The content, and therefore the goals, of the new guidelines fail the legitimacy test in all three of these ways, just as their Obama-era predecessors did. The new definitions diverge from the plain meaning of Title IX’s text and the settled meaning of terms by the Supreme Court, and the new investigative procedures may be used to violate due process guarantees in the US Constitution.

“Sex assigned at birth” implies that the biological sex placed on an individual’s birth certificate is a subjective choice made by an authority figure—a doctor or parent—to socialize the child.

Do Words Matter? New Definition of “sex” and “sex harassment”

The 2024 regulations’ redefinition of “sex” to include sexual orientation and gender identity diverges from the plain meaning of Title IX’s text and conflicts with laws in 24 states that ban transgender student-athletes from competing on sports teams consistent with their gender identity instead of their biological sex. The 2024 regulations use the term “transgender” to mean “a person whose sex assigned at birth differs from their gender identity”(emphasis added). This statement replaces “sex,” which in Title IX’s 1975 implementing document meant biological sex, or what might be called “chromosomal determination,” with “sex assigned at birth.” The addition of “assigned at birth” intends to affirm the lived experience of transgender individuals, but in doing so it conflates the terms “sex” and “gender” to create new rights that are not apparent in the plain text of Title IX.

The term “gender” was not used or discussed in the congressional debate over Title IX. Today, however, many conflate “sex” and “gender” because policymakers, teachers, judges, advocates, and laypersons erroneously use them interchangeably. But, simply put, “sex” is not synonymous with “gender.” The World Health Organization (WHO) states that gender “is different from sex,” and rejects using the terms interchangeably. WHO defines “sex,” as the “biological differences between males and females;” whereas “gender” is the “socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.”

While the phrase “sex assigned at birth” apparently aims to be compassionate and inclusive of transgender individuals, its use in the regulations is not interpretation but transformation. The phrase implies that the biological sex placed on an individual’s birth certificate is a subjective choice made by an authority figure—a doctor or parent—to socialize the child. In other words, “sex” is not determined by a newborn’s chromosomes or gene expression but by choice, power, and social norms. The regulations proceed as if “sex,” “gender,” and “sex assigned at birth” are all interchangeable, which could be interpreted to mean that biological (chromosomally determined) sex does not exist.

This terminology matters because Title IX’s original 1975 implementing document, which is still law as authorized by Congress, explicitly permits sex-segregated facilities including restrooms, dressing rooms, residence halls, or living facilities, on the basis of individual privacy, as well as sex-separate fraternities, sororities, and boys and girls organizations. In acknowledgment of the possible relevance of biological differences in physical strength, bone density, and vulnerability to injury between males (XY) and females (XX), Title IX permits “separate athletic teams for members of each sex” if “such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” 

Treating one’s gender identity as one’s biological sex would eliminate sex-segregated facilities, activities, athletics, groups, and organizations, as clarified in the Department of Education’s “Examples of Policies and Emerging Procedures Supportive of Transgender Students,” a companion to the now-rescinded 2016 DCL on Transgender Students. Recommendations include mandating the use of preferred pronouns and the student’s preferred name, which critics might call compelled speech; permitting students to use locker rooms and bathroom facilities consistent with their chosen gender identity, which challenges the right to privacy; and allowing participation on the athletic team consistent with the student’s gender identity, which could allow biological males (XY) to dominate, or injure, biological females (XX). Such changes are not evolutionary, but constitute a significant transformation that is not inherent in the statutory language and that would impact all students.

Current litigation also targets the “broader” definition of student-to-student hostile environment sexual harassment, which replaces the Supreme Court’s standard in Davis v. Monroe Co. (1999). According to SCOTUS, Title IX prohibits a very specific kind of sexual harassment, behavior that is “severe, pervasive, and objectively offensive.” And this is the standard adopted in the 2020 regulations. The 2024 regulations, in contrast, promulgate an entirely new definition. Downplaying “the degree of difference from the Davis standard [which] should not be overstated,” the new definition includes behavior deemed “subjectively and objectively offensive” and “severe or pervasive.”

Adding the new conception of “sex” will multiply the types of complaints. The addition of “subjective” judgment puts the onus on whether a complainant feels discriminated against, which will likely lead faculty and students to police their language, potentially stifling free debate, the search for truth, and the exchange of ideas focusing on sex and gender issues. The “or” in “severe or pervasive” behavior will increase the number of complaints of various levels of severity, while permitting a great deal of subjectivity in determining whether and how to investigate the behavior under Title IX.

Major Questions Doctrine and Legal Precedent

Does the OCR have the authority to alter the meaning of sex or hostile environment harassment to significantly transform Title IX? Not according to the Major Questions Doctrine or legal precedent. The Supreme Court began limiting the increasingly bold actions by appointees in several executive agencies with the Major Questions Doctrine, which asserts that executive agencies do not have the authority to enact changes of “deep economic and political significance” unless Congress has explicitly delegated that authority and unambiguously detailed its extent. Silent on the specific content of an agency action except insofar as it comports with statutory text, the doctrine seeks to determine whether “agency officials have sought to resolve a major policy question without clear legislative authorization to do so.”

With respect to Title IX, Congress has never clarified in over five decades the OCR’s Title IX authority to redefine sex as gender identity or sexual orientation to create new rights for students. Nor does the OCR have any authority simply to ignore SCOTUS interpretations of legal terminology like sexual harassment. While there is nothing inherently wrong with a law that imposes a major cultural change, Congress is vested with all legislative powers, and therefore is the appropriate body to enact such change. And, Congress has attempted and failed to alter the term “sex” in Title IX to include gender identity and sexual orientation in 2013, 2015, and 2021.

The inclusion of sexual orientation and gender identity under Title IX also lacks legal precedent. Bostock v Clayton County, Georgia (2020) found that an individual’s gender identity or sexual orientation cannot be a basis for hiring or firing an employee under Title VII. While it may seem precedential for Title IX, Bostock is a Title VII ruling. The relevant precedent for Title IX is Title VI, on which it was modeled. Second, even if Title VII were the appropriate legal precedent, the scope of Bostock is much narrower than the 2024 Title IX guidelines. Gorsuch’s majority opinion makes very clear the narrow scope—an individual’s sexual orientation or transgender status is not relevant to such employment decisions.

An application of Bostock to Title IX would extend only to admission or participation in programs and activities. Bostock does not take a stand on “sex-segregated bathrooms, locker rooms, and dress codes.” In contrast, the 2024 regulations ignore the difference between barring an individual from participation and creating new and unexpected rights not apparent in the statute, such as the right of individuals to compete on a particular athletic team or to use the private facilities of their choice, regardless of biological sex. Regardless of whether one favors the creation of these rights to protect transgender students, one must acknowledge that they are created and not inherent in the law. As such, they are also vulnerable to being legally challenged and removed from Title IX.

Are Accused Students Entitled to Due Process Protections under Title IX?

While multiplying the kinds of actionable complaints under Title IX, the 2024 regulations reduce the protections for the accused. The Foundation for Individual Rights and Expression (FIRE) and American Civil Liberties Union (ACLU) note the guidelines’ failure to mandate necessary procedural protections for complainants and accused students, including the right to cross-examine one’s accuser, the right to a live hearing, and the right to cross-examine witnesses, making both parties less likely to receive justice.

A campus justice system that fails to provide adequate due process harms both the complainants and the accused.

Collectively, these due process changes make it easier for an accused student to be found guilty. However, if an increase in guilty verdicts is owing to inadequate due process protections, accused students, whether guilty or innocent, will sue their universities for defamation and the mishandling of sexual assault complaints, and they will often win.

A campus justice system that fails to provide adequate due process harms both the complainants and the accused. Under the 2024 guidelines, innocent students may falsely be accused or punished, leading to tragic consequences such as suicide. Victims/survivors may not see their attackers punished. Improperly handled allegations have resulted in millions of dollars awarded to accused students. Such victories or settlements for accused students retraumatize the complainant, who may not receive justice.

The 2024 investigation requirements violate standing law, precedent, and the Major Questions Doctrine. Prior to their release, Congress did not direct the OCR to change them and there was no indication of a needed change to the 2020 regulations. To the contrary, the number of lawsuits filed by accused students against university procedures has declined since the adoption of the 2020 due process protections. The decline stopped in 2022, after President Biden announced that new regulations were coming. Neither Congress nor the public sought the reduction of due process protections under Title IX. FIRE has noted that the 2024 requirements stand in conflict with over 250 cases that recognize the due process rights of all students. Politically diverse organizations including the ACLU, FIRE, Title IX for All, Independent Women’s Law Center, Independent Women’s Network, Parents Defending Education, Speech First, among others, have called for codifying the protections offered in the 2020 guidance. Those who have challenged the due process requirements of 2020 regulations have repeatedly failed to undermine them.

Is the Federal System Broken?

The 2024 Regulations demonstrate that a process compliant with the APA’s notice and comment requirement is not sufficient to ensure constitutionally legitimate interpretations of laws like Title IX. The Administrative Procedures Act, the Major Questions Doctrine, the statutory text, and relevant Supreme Court Interpretations together help ensure that laws remain consistent with the US Constitution.

When Congress has failed or chosen not to take action on controversial policies, agencies like the Office for Civil Rights may “smuggle in a power” to add new rights to existing laws or to alter procedures to bring about their desired end goals. This is what the 2024 regulations attempt. Unfortunately, redefining terms cannot settle the highly contentious issues that surround sex and gender. Such administrative action only leads to litigation, not settled law.

A true constitutionalist seeks to understand the meaning of law—“only the words on the page” as “adopted by Congress and approved by the President.” If administrators can redefine the words that comprise a law, are we a government of laws, or of administrators? If constitutionally recognized rights can be thwarted by administrative agencies, what rights can be guaranteed?

One can seek justice for survivors of sexual assaults, as well as legal protections for transgender people, while recognizing that administrative action fails to provide these in a sustainable way. It is possible to be a compassionate society that recognizes and protects the dignity of all persons, while working towards such protections in constitutionally appropriate ways. To avoid the perpetual cycle of Title IX litigation, Congress would need to pass a clear amendment detailing the extent to which the OCR can mandate a campus justice system to adjudicate sexual misconduct with a new and unorthodox conception of due process rights. Congress would need to openly debate whether sex-exclusive athletic competition, bathrooms, locker rooms, sororities, fraternities, or dorm rooms should continue to exist under Title IX, and then build a consensus to pass a law on the subject.

Anything short of congressional action will result in the tumultuous process of executive agencies creating “guidelines,” “rules,” or “regulations” vulnerable to constant litigation. Absent such congressional action, no one’s rights can adequately or consistently be protected.