Texas Court Blocks 2021 Title IX Guidance on LGBTQ Issues: What Does This Mean for the 2024 Title IX Rules?

On June 11, in a 112-page ruling in State of Texas v. Cardona, et al., federal judge Reed O’Connor in Fort Worth, Texas declared unlawful the U.S. Department of Education’s (ED) 2021 administrative guidance that defined sex discrimination under Title IX to include discrimination based on sexual orientation and gender identity. The Texas court prohibited ED and the Department of Justice (DOJ) from implementing or enforcing this 2021 guidance against the State of Texas and its public schools.

This ruling does not apply to the 2024 Title IX Rules that are effective August 1, 2024, but it foreshadows how courts may rule in lawsuits that directly challenge the 2024 rules. Lawsuits challenging the new Title IX rules are now pending in multiple courts across the country, including one in Amarillo and one in Fort Worth pending before Judge O’Connor.

What’s at Stake?

ED published its 2021 guidance on sexual orientation and gender identity after the U.S. Supreme Court held in an employment case that Title VII’s prohibition of “sex” discrimination in the workplace includes discrimination based on sexual orientation and gender identity. In the 2020 decision Bostock v. Clayton County, the Court found that it is impossible to discriminate against a person for being transgender without discriminating against that individual “based on sex.”

Following the Bostock decision on Title VII, in 2021 the Biden Administration issued administrative guidance that interpreted Title IX in the same manner. ED did not, however, subject the guidance to the formal rulemaking process which would have enabled the public to comment on the proposed interpretation. ED announced that the federal government would enforce Title IX to prohibit  discrimination on the basis of gender identity and sexual orientation in education programs and activities that receive federal funding. The federal guidance explained that courts historically had defined “sex discrimination” under Title VII and Title IX in the same way. ED concluded  that Title IX no more permits a school to bar a student from band practice because the student is transgender than Title VII permits an employer to fire an employee because the employee is transgender.

In 2023, the State of Texas sued the federal government and asked the court to declare the administrative guidance unlawful and inapplicable to Texas and public schools throughout the state. Texas argued that Title IX is different from Title VII and that ED exceeded its authority by applying Bostock’s analysis to Title IX. Texas also argued that the guidance was invalid because ED issued the guidance without going through the full notice-and-comment rulemaking process.

What Did the Court Decide?

In its June 11 ruling, Judge O’Connor granted summary judgment in the State’s favor. The court held that ED exceeded its authority when it interpreted Title IX to encompass discrimination based on sexual orientation and gender identity. The court also found that ED’s interpretation contradicts Title IX as drafted by Congress.

The court reasoned that Title IX’s prohibition of discrimination “on the basis of sex” means “only a person’s biological sex—that is male or female” as immutably determined at birth. According to the court, “sex exists on a binary continuum” and Title IX solely prohibits treating a person of one biological sex differently from the other biological sex. The decision therefore rejected interpreting Title IX to prohibit discrimination against transgender students. The court found that ED was incorrect, for example, in advising that Title IX prohibits schools from preventing a transgender female student from using the girls’ bathroom or joining the girls’ cheerleading team.

As for the Supreme Court’s ruling in Bostock, the judge found that Bostock was strictly limited to the employment context and that “the workplace is not the same as the educational environment.”

And just three days after this Texas decision, the U.S. Sixth Circuit Court of Appeals affirmed a preliminary injunction ordered by a Tennessee federal district court that prohibits enforcement of ED’s 2021 Title IX guidance in 20 states—Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

Does this Decision Affect the 2024 Rules?

There has been considerable chatter and disinformation about Judge O’Connor’s opinion. Plain and simple, the court’s ruling did not invalidate the 2024 Title IX Rules, change their effective date, or give schools legal cover for noncompliance with the new Title IX rules.

What then did the court do? And why bother ruling on the 2021 guidance when the 2024 Rules were in fact subjected to formal rule-making and public comment? The court’s order:

  • Declares ED’s 2021 Title IX informal guidance documents unlawful including a June 22, 2021 Notice of Interpretation, June 23, 2021 Dear Educator Letter, and June 23, 2021 Fact Sheet.
  • Bars ED and the DOJ from issuing future guidance stating that Title IX prohibits discrimination on the basis of sexual orientation or gender identity.
  • Bars ED and the DOJ from implementing or enforcing the 2021 guidance against the State of Texas or any public school districts or other educational institutions in Texas.
  • Requires ED and the DOJ to halt any pending investigations, including Office for Civil Rights (OCR) Title IX investigations, under the 2021 guidance’s interpretation of Title IX.

The court did not prohibit ED from enforcing any final agency rules in Texas—such as the new Title IX rules.

But Texas is now asking the court for more. On June 14, Texas filed a motion asking the court to expand the scope of its judgment to include final agency rules like the new Title IX rules. Texas is asking the court to prohibit ED and the DOJ from enforcing Title IX against Texas and its public schools in any way that interprets Title IX to prohibit discrimination on the basis of sexual orientation and gender identity.

What Does This Mean for the New Title IX Rules?

Thompson & Horton’s Title IX team anticipated that the expanded LGBTQI+ provisions in the 2024 Title IX rules likely would be enjoined, at least preliminarily, in Texas and other states. In addition to handling the lawsuit over the 2021 ED guidance, Judge O’Connor also is the presiding judge in a case filed by a Texas  school district that challenges the 2024 rules. And another Texas challenge is pending in a federal district court in Amarillo.

As it turns out, the LGBTQI+ provisions reflect just a fraction of the changes to the Title IX regulations. For example, in Thompson & Horton’s 2024 Title IX Guidebook for K-12 Schools and The Essential 2024 Title IX Guidebook for Texas K-12 Schools, less than three pages of the 150+ page handbook address the LGBTQI+ provisions.

We believe the real question is whether courts enjoin the remainder of the new rules. Currently, multiple lawsuits challenging the new rules are moving through district courts across the country. On June 13, a Louisiana court preliminarily enjoined the enforcement and implementation of the new Title IX rules in Louisiana, Mississippi, Montana, and Idaho. The DOJ has argued in response to these lawsuits that, even if a district court were to invalidate the LGBTQI+ provisions, it would be improper to block the remaining rules from taking effect on August 1, 2024. The proper remedy, DOJ argues, is to sever the rules found to be invalid.

All of the courts are cognizant of the looming August deadline; therefore, it is likely we will see additional rulings in the coming weeks followed by immediate appeals.

We are monitoring them all. Stay tuned to titleixtips.com. And join us on June 26 at 1:00 p.m. CDT for our complimentary webinar: Attorneys General Fought the New Title IX Rules: The Clash Between States & the Department of Education. T&H’s Title IX team will provide an up-to-the-minute update on all these pending lawsuits that may impact your school. You can register here.

Contact your Thompson & Horton attorney or our Title IX team at titleix@thlaw.com with any questions.