July 26, 2024
On July 24, the U.S. District Court for the Eastern District of Missouri became the sixth federal court to block the Biden Administration’s 2024 final Title IX rule changes from taking effect. The ruling is available here.
A bit of background: Title IX of the Education Amendments of 1972 reads, simply: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” It was enacted into law and signed by President Nixon in 1972. Although it has come to be associated primarily with women’s sports, its original intention was to protect women and girls throughout the educational arena. One of its primary authors and fiercest proponents was Representative Patsy Mink, a Japanese-American woman born on a Hawaii sugar plantation who eventually made her way to the House of Representatives. When she died in 2002, the law was renamed in her honor. So although it is commonly known as Title IX, its official name is the Patsy Mink Equal Opportunity in Education Act.
In 1975, under President Ford, the U.S. Department of Health, Education, and Welfare (today, the Department of Education) promulgated implementing regulations to govern enforcement of Title IX in the nation’s schools. These regulations explicitly permitted sex-separation under certain circumstances. For example, recipients of federal funding under Title IX were permitted to maintain sex-specific housing facilities; toilet, locker room, and shower facilities; human sexuality classes; scholarships; and sports teams, “where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” In other words, in 1975, the Department understood that when equality of the sexes is the goal, separating students by sex makes sense under certain circumstances.
In June 2022, the Department announced new proposed changes to the Title IX regulations redefining the word “sex” to include “gender identity” for all Title IX purposes. The Department received over 250 thousand public comments to that proposed rule (the most in the Department’s rule-making history). In April 2024, the Department made the rule final and announced that it would go into effect on August 1, 2024.
But the final rule is in serious trouble when it comes to the federal judiciary. And although the political persuasions of the judges who have blocked the rule generally play out as you might expect, there’s been a recent plot twist.
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