The State of Texas Reacts Swiftly, Files Suit to Halt the New Title IX Rules

The State of Texas did not waste any time in its response to the new Title IX rules.

Monday, the day the new rules were officially posted in the Federal Register, Texas filed a lawsuit in federal court in Amarillo, Texas to challenge the rules and halt their implementation—or at least postpone the August 1 effective date. The State of Texas claims the rules are unlawful and exceed the Department of Education’s authority. With schools gearing up to comply with the new Title IX rules, we are monitoring this lawsuit and others that may affect your school’s Title IX obligations.

Challenge to inclusion of sexual orientation and gender identity as sex discrimination

Central to Texas’s legal challenge is the Department of Education’s interpretation of the scope of Title IX sex discrimination and specifically the protections for LGBTQI+ individuals. Of particular concern to Texas are how the new rules will impact sex-separate facilities, such as bathrooms and locker rooms, and the names and pronouns students and staff must use for transgender individuals.

The new rules state that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, sexual orientation, and gender identity. While this aligns with OCR’s interpretation of Title IX since early 2021 (as well as during the Obama administration), this is the first time the Title IX regulations have explicitly included discrimination based on sex stereotypes, sex characteristics, sexual orientation, and gender identity as sex discrimination. The Department of Education asserted that this interpretation is consistent with recent court decisions nationwide, including the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, that Title VII’s prohibition on sex discrimination in employment encompasses discrimination based on sexual orientation and gender identity.

Texas disputes this interpretation and argues that Title IX sex discrimination pertains solely to discrimination on the basis of “biological sex” and does not extend to sexual orientation or gender identity. Texas disagrees with the Department’s reliance on the Supreme Court’s Bostock decision and argues that Bostock is limited to employment discrimination and does not extend to Title IX.

As to sex-separate facilities, the Department stated that sex separation in certain circumstances, such as access to bathrooms or locker rooms, “is not presumptively unlawful sex discrimination.” The rules, however, state that when the use of sex-separate facilities “imposes more than de minimis injury . . . such as when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity,” this would violate Title IX.

Texas complains that this conflicts with the policies of Texas and certain Texas school districts that limit access to student bathrooms and locker rooms based on biological sex. Texas asserts that the new rules would require these school districts to change their policies to allow access to bathrooms, locker rooms, showers, and changing facilities based on gender identity, instead of biological sex, or risk violating Title IX.

Texas further alleges that the new rules would conflict with the policies of some districts related to the use of pronouns consistent with a person’s biological sex versus gender identity and would require schools “to confront students and employees who refuse to affirm someone’s gender identity, up to and including disciplinary proceedings, or risk being found in noncompliance with Title IX.”

The 2024 Title IX rules do not address transgender athletic participation or require schools to allow students to participate in sports teams based on gender identity. The Department proposed a separate Title IX rule to address these issues, which has not been finalized or released.

Challenges to other portions of the new Title IX rules

Beyond LGBTQI+ protections, Texas’s lawsuit targets other provisions of the new Title IX rules. Texas alleges that the new rules roll back constitutional due process safeguards put in place by the Trump Administration in the current Title IX rules. Specifically, Texas takes issue with the provisions in the new rules that make live hearings optional for post-secondary institutions’ response to allegations of sex-based harassment.

Texas also criticizes the “lower standard” in the new Title IX rules for hostile environment sex-based harassment. Instead of severe and pervasive conduct, the new rules define hostile environment to include conduct that is so severe or pervasive “that it limits or denies a person’s ability to participate in or benefit from the [school’s] education  program or activity.”

The Department of Education has not yet responded to Texas’s lawsuit and the court has taken no action.

Next steps

We never doubted that there would be litigation over the new Title IX rules. Now that it’s here—and in Texas—we will follow it closely. We do not know exactly how the court will rule. We can’t yet know whether the court will concentrate on the LGBTQI+ protections in the new rules, will rule more broadly, or will rule in any manner that could change your institution’s need to be ready for compliance by August 1.

While educational institutions should keep up to date with all legal developments, they should not set aside their planning and preparation for the new Title IX rules. Even if the rules are temporarily enjoined, injunctions can be lifted with little warning, leaving limited time to prepare for implementation. Thompson & Horton’s attorneys will closely monitor developments in litigation regarding the new rules in Texas and nationwide and provide updates on our Title IX Tips blog. If you have questions, please reach out to titleix@thompsonhorton.com.