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title ix
Supreme Court Denies Biden Administration's Request to Reinstate Expanded Title IX Rule
In a 5-4 ruling—with Justice Neil Gorsuch joining the liberals in dissent—the court delayed Biden's expansion of Title IX protections to include gender identity and sexual orientation.
Aug 16, 2024
The U.S. Supreme Court on Friday denied the Biden administration's emergency request to reinstate parts of its updated Department of Education Title IX rule expanding the definition of "discrimination on the basis of sex" to include sexual orientation, gender identity, and pregnancy status.
The nation's highest court ruled 5-4—with conservative Justice Neil Gorsuch joining liberal colleagues Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in dissent—that the Biden administration "has not provided this court a sufficient basis to disturb the lower courts' interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule."
Republican attorneys general in more than two dozen states pushed courts to block the Biden administration's updated Title IX rule, which was set to take effect on August 1. The new rule has been on hold pending the outcome of litigation.
In her dissent, Sotomayor wrote: "A majority of this court leaves in place preliminary injunctions that bar the government from enforcing the entire rule—including provisions that bear no apparent relationship to respondents' alleged injuries. Those injunctions are overbroad."
While conservatives welcomed the ruling, LGBTQ+ advocates expressed disappointment.
"All young people deserve to show up to school and get an education without facing the threat of discrimination and bigotry. But five cruel justices on the Supreme Court just put countless LGBTQ+ students' health, safety, and lives in jeopardy," said Sarah Lipton-Lubet, president of the advocacy group Take Back the Court.
"The hateful right-wing movement with which these justices align themselves constantly invokes 'protecting children' as a false justification for their extremist agenda," Lipton-Lubet added. "But protecting children means keeping them safe from homophobic and transphobic violence; from gun violence; from attacks on equitable education; and from environmental destruction that threatens their futures. This court has failed them time and time again."
The Biden administration's effort to expand Title IX protections came amid a wave of anti-LGBTQ+ laws enacted in Republican-controlled states in recent years.
More than two dozen states have passed laws banning or restricting gender-affirming healthcare including puberty-blocking drugs, hormone therapy, and surgery for minors. At least 11 states have also passed laws banning transgender students from using school restrooms and other facilities consistent with their gender identity, and 25 states have banned transgender girls from competing on female scholastic sports teams.
Responding to Friday's decision, an Education Department spokesperson said that "while we do not agree with this ruling, the department stands by the final Title IX regulations released in April 2024, and we will continue to defend those rules in the expedited litigation in the lower courts."
Friday's ruling is not the last word on the Biden administration's Title IX rule, as the decision merely delays the issue pending further litigation that could ultimately be revisited by the Supreme Court in the future.
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SCOTUS Lets Stand Decision Ensuring 'Publicly Funded Charter Schools Are Not Above the Law'
"Girls at public charter schools have the same constitutional rights as their peers at other public schools—including the freedom to wear pants," said the ACLU Women's Rights Project director.
Jun 26, 2023
The U.S. Supreme Court on Monday declined to hear a challenge to an appeals court ruling that charter schools receiving public funds—like traditional public schools—must abide by the country's Constitution and federal law.
In the initial case, parents and students at Charter Day School in North Carolina—represented by the national and state ACLU along with the law firm Ellis & Winters LLP—fought against a dress code requiring girls to wear skirts, jumpers, or skorts and boys to wear pants or shorts. The U.S. Court of Appeals for the 4th Circuit last year found that such schools are "state actors" in terms of the equal protection clause of the 14th Amendment to the Constitution.
"Nothing in the equal protection clause prevents public schools from teaching universal values of respect and kindness. But those
values are never advanced by the discriminatory treatment of girls in a public school," wrote Judge Barbara Keenan, an appointee of former President Barack Obama. "Here, the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina's young residents."
Celebrating that decision last year, Bonnie Peltier, the mother of a former student involved in the case, said that "I'm glad the girls at Charter Day School will now be able to learn, move, and play on equal terms as the boys in school... In 2022, girls shouldn't have to decide between wearing something that makes them uncomfortable or missing classroom instruction time."
As NPRdetailed Monday:
Lawyers for the school had asked the Supreme Court to review the case, arguing that the appeals court decision would hinder the ability of charter schools to make independent choices.
The lower court "unleashed" "numerous harms to charter school innovation and even farther-reaching evils," they said. Reversing the decision would "safeguard educational choice in states that do not impose constitutional requirements on charters."
Additionally, as Politico pointed out, "religious liberty groups, some school choice organizations, plus 10 attorneys general in Republican-led states had asked the justices to intervene" in response to the appellate court's ruling.
At least four of the Supreme Court's nine justices would have needed to support taking Charter Day School v. Peltier for the challenge to be heard. There were no noted dissents and the high court did not explain its reasoning, which is standard for such denials.
"North Carolina has chosen to meet its constitutional duty to provide a sound basic education to all kids by creating a public school system that includes publicly funded charter schools," said Kristi Graunke, legal director of the ACLU of North Carolina Legal Foundation, in a statement Monday. "The court's decision ensures publicly funded charter schools are not above the law."
Ria Tabacco Mar, director of the ACLU Women's Rights Project, declared that "today's announcement is a victory for the thousands of students who attend public charter schools in North Carolina and for the 3.6 million students like them nationwide."
"Girls at public charter schools have the same constitutional rights as their peers at other public schools—including the freedom to wear pants," she added. "We will continue to fight for all girls to learn in safe and equal schools."
Along with its constitutional conclusions, the 4th Circuit last year found that Title IX, which prohibits sex-based discrimination in education programs that receive federal funding, applies to dress codes, and asked a district court to determine if the school in this case—now renamed under the banner of Classical Charter Schools of America—violated that U.S. law.
The ACLU explained that "the Supreme Court's announcement today that it will not hear the appeal paves the way for the Title IX case to proceed in the district court."
As Politico noted:
Yet the legal fight has now extended beyond dress codes to entangle public religious charter schools and constitutional limits between church and state, after Oklahoma authorities' landmark decision this month to approve a public and directly taxpayer-funded Catholic school that teaches religious principles like a private institution.
Litigation over the Oklahoma decision is expected and could someday reach the high court.
"We, Americans United, and our partners are planning legal action to stop this unconstitutional plan," the ACLU said of the Oklahoma decision earlier this month. "Our public schools must be free from religious indoctrination and open to all students."
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'Vile and Cowardly': House GOP Votes to Ban Trans, Intersex Girls From School Sports
"I guess whether in the school cafeteria or on the House floor, bullies will always be bullies," said Democratic Rep. Mark Pocan.
Apr 20, 2023
LGBTQI+ rights advocates and congressional Democrats sharply condemned U.S. House Republicans on Thursday for approving a "cruel" and "heartbreaking" ban on trans and intersex women and girls playing school sports that align with their gender identity.
The so-called Protection of Women and Girls in Sports Act (H.R. 734), sponsored by Rep. Greg Steube (R-Fla.), passed in a 219-203 vote along party lines and would apply to any educational institution, preschool and beyond, that receives federal funding.
Dubbed the "Politics Over Participation Act" by critics, the bill isn't going anywhere with a Democrat-controlled Senate and White House, but its passage—on the 24th anniversary of the Columbine massacre—sends a clear signal to the nation about priorities amid calls for stricter gun laws in response to school shootings.
"Trans kids on our soccer teams are not a threat. But assault weapons in our community certainly are. The Republican Party needs to get their priorities in check," declared Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.), whose daughter is trans, ahead of the vote.
\u201cEvery child deserves the freedom to be themselves, to go to school and play sports free from harassment and discrimination.\n\nThat includes trans and intersex kids \u2014 and it always will.\n\nProgressives voted NO on Republicans' use of the House of Representatives to bully trans kids.\u201d— Progressive Caucus (@Progressive Caucus) 1682005048
Rep. Mark Pocan (D-Wis.) similarly said that "as gun violence plagues our schools, anti-equality politicians decided the most pressing priority for the House was to ban trans girls of all ages from playing on school sports teams with their friends. These extreme politicians are trying to distract from the fact that they have no solutions for the problems facing everyday Americans, and trans kids are paying the price."
"Trans girls deserve the same opportunity as all other girls—to be part of a team, learn sportsmanship, and challenge themselves," he continued. "I condemn today's vote to rob trans girls of these opportunities. Anti-equality politicians need to stop punching down and bullying trans kids. My colleagues who voted for this bill should be ashamed."
Pocan chairs the Congressional Equality Caucus, which is led by the 10 openly LGBTQI+ members of the House. Caucus co-chairs also spoke out against the chamber's Republicans, with Rep. Mark Takano (D-Calif.) denouncing the bill as "vile and cowardly."
\u201cMAGA House Republicans just passed a bill banning trans & intersex kids from playing school sports.\n\nRather than vote to keep guns out of school, they chose to strip KIDS of RIGHTS.\n\nI guess whether in the school cafeteria or on the House floor, bullies will always be bullies.\u201d— Rep. Mark Pocan (@Rep. Mark Pocan) 1682002507
Congresswoman Angie Craig (D-Minn.) said it was "heartbreaking" to watch Republicans pass "cruel" legislation that would harm and endanger children while a fellow co-chair, Rep. Ritchie Torres (D-N.Y.), tied the effort to bills from GOP state legislators.
"It's become painfully obvious that extreme MAGA Republicans have absolutely no interest in addressing the very real problems facing everyday Americans, like fighting inflation, protecting communities from gun violence, and making healthcare more affordable and accessible," Torres said. "'Instead, they're singularly obsessed with continuing this hateful and coordinated assault on LGBTQI+ kids that we've seen playing out across the country through countless pieces of anti-trans legislation."
Other members of Congress also blasted the bill. Rep. Rashida Tlaib (D-Mich.) noted that "the MAGA Republicans banning trans kids from playing sports are the same ones who want to erase the existence of trans students in the classroom, and ban trans people from receiving healthcare. This is part of a coordinated effort across the country to systematically eradicate trans people."
"The relentless fearmongering, bullying, rejection, and hateful policies being pushed by far-right Republicans across the country have dangerous and very real consequences," the congresswoman added. "In the past year, more than half of trans and nonbinary young people seriously considered suicide, and one LGBTQ+ young person attempts suicide every 45 seconds."
\u201cI called out MAGA Republicans when they brought their Bullying Kids Act to @EdWorkforceDems.\n\nThis week their hateful bill comes to the House floor and we must be loud as we vote NO.\n\nOur kids and the trans community deserve better than to be bullied by "adult" Republicans.\u201d— Congressman Jamaal Bowman (@Congressman Jamaal Bowman) 1682001581
Advocacy groups also took aim at House Republicans for the vote—the first time ever that a chamber of Congress has approved legislation that expressly discriminates against intersex people, according to interACT, which advocates for the human rights of children born with intersex traits.
"H.R. 734 nefariously twists the protective civil rights purpose of Title IX to punish inclusive educational athletics programs that choose not to discriminate," said interACT executive director Erika Lorshbough, referencing a federal anti-discrimination law. "The choice to push intersex and transgender girls out of school athletics protects no one, and harms many."
Dr. Bhavik Kumar, a board member of Physicians for Reproductive Health, said that "discrimination based on gender is damaging to the developmental well-being of children. No one should fear ostracization, shame, punishment, or isolation for being who they are."
"As a physician who regularly provides affirming healthcare for trans and nonbinary communities," Kumar added, "it is highly concerning that our politicians are hellbent on making the lives of trans youth so controlled by the gender binaries so deeply rooted in white supremacist control."
Jennifer Levi, GLBTQ Legal Advocates & Defenders (GLAD) senior director of transgender and queer rights, said the vote "is a malicious attack on transgender student athletes and sends a harmful message of exclusion and intolerance to all students."
"Transgender students want to play sports for the same reasons all kids do—to compete, have fun, be part of a team and build confidence, leadership, and healthy self-esteem," Levi stressed. "We urge the Senate to stop this unnecessary and unprincipled measure in its tracks."
\u201cThis unfair and unnecessary legislation offers a distorted interpretation of Title IX and a false choice. We can protect the progress women have made in sports while also fostering the inclusion of #transgender athletes. #LetKidsPlay #HR734 @TrevorProject https://t.co/5K6azm5DCR\u201d— CaseyPick (she/her) (@CaseyPick (she/her)) 1682003535
ACLU national policy director Deirdre Schifeling accused the House GOP of failing the American people, saying: "Why are Republicans in Congress spending their time bullying children? This is not what voters elected them to do."
"Instead of governing responsibly, solving the debt limit, and passing legislation that the American people actually want and need, this House majority is legislating discrimination and hate towards school children," she added. "We expect and deserve better from our elected leadership. The ACLU will fight for the rights of all people to be included in our society."
While many Democratic lawmakers, rights advocates, and atheletes have denounced H.R. 734—alongside state-level bills about school sports and lifesaving healthcare—some trans and nonbinary state legislators have also sounded the alarm about the Biden administration's pending Title IX update, warning that though well-intended, it could effectively "provide those who seek to deny us our rights a roadmap for how to do so."
This post has been updated with comment from Physicians for Reproductive Health.
The 988 Suicide & Crisis Lifeline can be reached by calling or texting 988, or through chat at 988lifeline.org.The Trevor Project, which serves LGBTQ+ youth, can be reached at 1-866-488-7386, by texting "START" to 678-678, or through chat at TheTrevorProject.org. Both offer 24/7, free, and confidential support.
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