The Biden Administration thinks it knows what’s best for kids, better than their own parents. In adopting a new set of rules “interpreting” Title IX, a law intended to prevent discrimination against women in public schools, it now wants to cut parents out of decisions involving their children, while usurping the power of Congress to make the law. The Goldwater Institute, along with our friends at the Texas Public Policy Foundation, have filed a brief in federal court arguing why these rules should not take effect nationwide.
Enacted over five-decades ago, Title IX was aimed at preventing discrimination on the basis of sex and ensuring women had equal educational opportunities. But earlier this year, the Biden Administration, adopted new rules reinterpreting the word “sex” to mean not just biological sex, but to include gender identity and sexual orientation.
The department’s interpretation violates the Constitution because it allows school officials to engage in the gender transition of a child without informing parents. The Constitution, however, protects the rights of parents to direct the care and upbringing of their children, which cannot meaningfully occur if they are not aware of critical decisions regarding their children.
Moreover, the Department of Education is obligated to follow statute. It cannot redefine terms or add new ones to federal law.
It is no surprise, then, that the department’s interpretation of “sex” was immediately challenged in court. Federal district courts in Kansas, Tennessee, Louisiana, and Texas have held that the new interpretation is unlawful. Each court has then stopped the rule from going into effect on August 1, 2024. But there’s a catch.
In each one of those cases, the federal court only stopped the government from enforcing the law in some states—primarily only those who sued. That means the Biden Administration cannot require schools to follow this interpretation in Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, Wyoming, or West Virginia. But—with small exceptions—the public schools in every other state outside of these fifteen will still be required to follow the department’s new Title IX rules.
This should not occur. If the interpretation is unlawful because the administration did not follow the proper procedure (it didn’t), and if it is unconstitutional because the interpretation violates parental rights (it does), it makes no sense to allow the government to require some schools to abide by the rules when courts have already declared those rules unlawful and when they will not be enforced in other schools. But that’s exactly what the Biden Administration wants to do.
That is why Goldwater and the Texas Public Policy Foundation filed an amicus brief in a U.S District Court for the Northern District of Texas, encouraging the court to block the rule nationwide.
We explained that the current situation is contrary to federal law, which requires nationwide and uniform stays of agency rules that have been declared unlawful. We also observed that the current arrangement – allowing the rules to proceed in some schools and not others – is a recipe for confusion, especially for parents. For parents to exercise their fundamental right to direct the education of their children, they need access to information about what rules, regulations, and laws apply to public schools that their children attend (or would attend). That information is necessary to make informed decisions about which educational options are best for their kids.
What’s more, some schools, including Dysart School District in Arizona, have effectively declared that they will apply prior Title IX interpretations in their districts.
The Biden Administration should not be permitted to enforce a patchwork of rules that courts nationwide have already declared unlawful. Parents (and schools) deserve clarity and consistency in determining the best educational options for children.
Read our brief here.
Adam Shelton is a Staff Attorney at the Goldwater Institute.
