What School Boards Need to Know About Title IX
American Enterprise Institute
October 24, 2023
Key Points
- The Biden administration is expected to issue final regulations on Title IX this fall, which are expected to redefine “sex” to encompass “gender identity,” lower the standard for what constitutes harassment, and pressure schools to predicate sports participation on gender identity.
- These new regulations will face substantial legal challenges on no fewer than seven grounds. Although an effective date is expected to be announced in the fall, it could be years before the new regulations are implemented, depending on the anticipated litigation challenging them.
- In the meantime, school boards may face pressure from advocacy organizations and possibly the Department of Education’s Office for Civil Rights to comply with a regulation that is not actually in full force. Doing so will expose them to litigation risk. School boards need not comply with a regulation that is not actually in effect.
Introduction
This fall, the US Department of Education (ED) plans to release the final federal rules that are expected to amend Title IX by changing the definition of “sex discrimination” to include discrimination on the basis of “gender identity.” A separate set of rules is expected to pressure school districts to predicate sports participation on the basis of “gender identity.”
These changes will be controversial and difficult to implement. School boards may consider adopting policies that conflict with the regulations, and if so, they need to be willing to litigate these issues. As school board members look ahead, they should be aware of what changes are expected, what legal claims are likely, what could happen if school board policies do not comply with the anticipated final rules, and what to do if they are in a state that has passed laws in conflict with the new ED rules.