Texas AG Challenges Both Trump and Biden Administration Interpretations of Title IX for LGBTQIA Students in New Lawsuit

Scales of Justice with Gender Markers

The Texas Attorney General’s Office has had a lot on its plate lately, including the suspension and impeachment of AG Ken Paxton. But it has taken on a new challenge this week with a broad lawsuit seeking to remove Title IX protections recognized by both the Trump and Biden administrations for LGBTQIA students.

Other lawsuits have challenged the Biden administration’s attempt to extend Title IX to sex-segregated sports teams, intimate facilities for transgender students, and even use of student pronouns. But the Texas lawsuit challenges the Department of Education’s interpretation of Title IX to protect LGBTQIA students from any discrimination and harassment based on sexual orientation or gender identity.

If a Federal court agrees with the lawsuit, it would remove protections for LGBTQIA students that both the Trump and Biden administrations have recognized since at least August 2020. Back then, the Trump administration’s Office for Civil Rights publicly opened a case for investigation alleging different treatment of a student for being gay, which had not been the policy of OCR before. Here’s what you need to know about the Texas AG’s lawsuit and its potential impact on schools in Texas and beyond.

Here’s the Backstory

We all remember the seminal Supreme Court decision Bostock v. Clayton County,Bostock v. Clayton County. Bostock held that Title VII (the employment counterpart to Title IX) prohibits firing someone for being gay or transgender. Although the case did not address Title IX, shortly after it was issued the Trump OCR publicly declared for the first time in Title IX’s history that some discrimination and harassment on the basis of a student’s LGBTQIA status could be sex discrimination prohibited by Title IX.

Before Bostock, OCR’s position was that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity unless there is also an allegation of failure to comply with gender-based norms. For that reason, I remember dismissing a complaint when I worked at OCR under the Obama administration that involved a claim that a student was called “gay” repeatedly by other students. But I remember investigating a complaint where a student was called a “pussy” regularly by other students. “Gay” relates solely to one’s status as a homosexual. “Pussy” is a pejorative typically used “as a slur against effeminate or cowardly men” and thus suggests the male target is failing to comply with expectations for men or boys.

As the Trump OCR explained in a January 8, 2021, memorandum citing Title IX, after Bostock “unwelcome conduct on the basis of transgender status or homosexuality may, if so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity on the basis of their transgender status or homosexuality, constitute sexual harassment prohibited by Title IX. 34 C.F.R. § 106.30(a).” As noted previously, the Trump OCR also publicly took on a case in August 2020 involving allegations that a high school student’s teacher and coach denied her opportunities because she was gay. The Trump OCR’s interpretation of Title IX did not, however, extend to intimate facilities like locker rooms, bathrooms, and living facilities or athletic teams, which Title IX explicitly allows to be sex-separated. The Trump team took the position that Title IX allows a school to prohibit or limit a transgender student’s access to intimate facilities and athletics teams matching their gender identity.

When the Biden administration took office in 2021, it issued several guidance documents indicating that OCR would begin broadly interpreting Title IX’s prohibition on discrimination “on the basis of sex” to encompass all discrimination on the basis of sexual orientation and gender identity. Unlike the Trump administration’s interpretation of Bostock, the Biden team did not recognize any exception for intimate facilities like locker rooms, bathrooms, living facilities, or for athletic teams.

Twenty state AGs, not including Texas, filed a lawsuit and obtained a preliminary injunction last year against Biden’s OCR based on that missing exception. The Tennessee court’s injunction prevents the Department of Education’s Office for Civil Rights from enforcing its interpretation of Title IX to prevent sex-separation of sports teams, bathrooms, locker rooms, and living facilities based on sex assigned at birth in those twenty states.

From our experience here at T&H, the Biden OCR has not been enforcing its interpretation of Title IX regarding intimate facilities, athletic teams, or pronouns anywhere since the Tennessee court’s decision, including in states like Texas that are not covered by the injunction.

OCR has, however, continued to pursue complaints involving LGBTQIA students. A recent investigation against Granbury ISD, for example, addresses allegations that the District created a hostile environment for LGBTQIA students when a school official made allegedly anti-transgender comments and LGBTQIA-focused books were removed from school libraries. OCR recently announced a resolution agreement with a Georgia school district in a similar case. These cases do not involve athletics or facilities. Instead, they address the types of harassment claims that the Trump and Biden administrations have consistently recognized are covered by Title IX since 2020.

The Texas AG’s Complaint

Although the Texas lawsuit cites many alleged harms from allowing transgender students to participate on athletic teams, to use sex-segregated intimate facilities, and to be called by the pronoun matching their gender identity, the allegations in the Texas AG’s complaint are much broader.

Specifically, the complaint appears to challenge any protections under Title IX for students based on sexual orientation or gender identity. That would appear to include, for example, students bullying a transgender student because of their transgender status (repeatedly calling them “trannie” or “she-male” or “it,” for instance) or a teacher refusing to allow a student who is transgender to play with other students at recess solely because they are transgender.

Indeed, the only case of OCR enforcement in Texas cited in the complaint is the Granbury ISD case. That complaint addresses allegedly anti-transgender comments by the District’s Superintendent and books removed from the District’s library shelves “disproportionately relating to LGBTQ+ themes and characters relative to the library’s contents.” In other words, it addresses whether Granbury ISD created a hostile environment based on gender identity. That argument may or may not have merit, but it does not relate to whether a transgender student can use sex-separated facilities, play on a sports team, or use pronouns matching their gender identity. As the complaint alleges, “[t]he atmosphere created by the [Superintendent’s] comments and by the book removals remains—a school environment that is pervasively hostile to LGBTQ+ and especially transgender and non-binary students.”

In addition to citing that example, the prayer for relief in the complaint also asks the court to broadly set aside all aspects of the Trump and Biden era guidance on LGBTQIA rights under Title IX. Specifically, it asks the court to declare that “Title IX does not bar discrimination based on sexual orientation or gender identity” at all. There is little question about the breadth of the relief the complaint seeks.

Impact on Schools

For now, the lawsuit has no impact on schools, in Texas or elsewhere, until the Federal court assigned the case rules on the complaint one way or another. It is unclear whether the AG’s broad request will find legs in Federal courts because even the Trump administration’s OCR recognized that Title IX offers LGBTQIA students some protection from discrimination and harassment after Bostock. Until a Texas court rules otherwise, schools should continue to seek legal counsel when they receive requests related to transgender student rights and understand that OCR can and is enforcing the Trump and Biden OCR’s interpretation regarding harassment and other discrimination based on one’s status as LGBTQIA that does not relate to intimate facilities or sports.  

To the extent that a Federal court in Texas grants more narrow relief to the AG, relating only to intimate facilities, athletics, and other sex-separated services allowed under Title IX, there will be little practical change, if any, for Texas schools. As noted previously, after the Tennessee injunction, we are not seeing enforcement by OCR in Texas or elsewhere regarding transgender athletics or facility access. That is true even though every Texas school district we are aware of is complying fully with the Texas University Interscholastic League rules and State law provisions requiring students to participate on athletic teams matching their sex assigned at birth.

As always, these issues are incredibly nuanced and raise significant risks of legal and other challenges from your communities. Your Thompson & Horton Title IX team regularly works with schools, colleges, and universities to effectuate the decisions that allow compliance with both State and Federal law and community standards. If you have questions, please don’t hesitate to contact me.