On July 27, 2022, Virginia joined forces with more than twenty other states to file a lawsuit against the U.S. Department of Agriculture (USDA), in response to that agency’s recent guidance advising that Title IX of the Education Amendments of 1972’s (Title IX) prohibition of discrimination in educational programs “on the basis of sex” is applicable to more than just “biological sex”; it also covers discrimination based on “sexual orientation” and “gender identity.” The USDA’s Title IX guidance potentially impacts all educational institutions and programs that receive federal assistance for things like school lunches under the National School Lunch Program that serves close to thirty million students each day.

What is the States’ Lawsuit About?

The big question in the lawsuit seems to be this: Who should get to decide what the word “sex” means for purposes of Title IX? In Bostock v. Clayton County, the U.S. Supreme Court concluded in the context of an employment dispute that Title VII of the Civil Rights Act of 1964’s (Title VII) prohibition of discrimination “because of sex” also includes employment discrimination based on sexual orientation and gender identity. Courts often look to Title VII for guidance in interpreting Title IX because of perceived textual similarities between the statutes.

What Started the Dispute?

The current rift began to build in early 2021 when President Biden issued an Executive Order declaring that the Bostock decision had expanded the meaning of “sex” in all federal laws to include discrimination on the basis of gender identity or sexual orientation unless a particular federal law contain sufficient indications from Congress to the contrary. The Department of Justice (DOJ) subsequently issued a memorandum adopting essentially the same position as the White House. The USDA’s guidance mirrors the 2021 Executive Order and DOJ memorandum.

What are the States’ Disagreements?

The States simply do not see it that way. Instead, they argue that the USDA’s guidance is arbitrary and capricious, contrary to law and exceeds the agency’s statutory authority because “Bostock’s interpretation of Title VII’s “because of sex” statutory language does not carry over to Title IX’s “on the basis of sex” statutory prohibition. Properly interpreted, the States continue, Title IX’s prohibition of discrimination on the basis of sex means “biological sex” only. The States describe the Bostock decision as “narrow” holding only that terminating an employee “simply for being homosexual or transgender constitutes discrimination because of sex under Title VII.” The States also seize on the Bostock majority’s express disclaimer that the decision is not applicable to “other federal or state laws that prohibit sex discrimination.” The States also point to the U.S. Department of Education’s regulations that are premised on distinctions based on biological sex in certain circumstances, as additional support for their position.

Will the States’ Lawsuit against the USDA Have an Impact on the DoEd’s Pending Title IX regulatory Amendments?

Similar storm clouds of disagreement between the States and federal government are on the horizon in connection with the Department of Education’s (DoEd) recently proposed revisions to the current regulations implementing Title IX, to better align them with “Title IX’s nondiscrimination mandate,” and to “clarify the obligation of all schools . . . to provide an educational environment free from discrimination on the basis of sex. . . .” The proposed amendments would expand the scope of sex-based discrimination covered by Title IX to expressly include for the first-time sexual orientation, gender identity, sex stereotyping, sex characteristics, and pregnancy or related conditions. Learn more about this and other key proposed changes to the current Title IX regulations.

Adding another layer of uncertainty to the arguments on both sides of the Title IX debate are two recent Supreme Court decisions. The first case, West Virginia v. EPA, casts doubt on whether a reviewing court must defer to executive agency interpretations of statutory provisions, when those interpretations stray significantly from the historic context in which the statute was originally passed, without some clear authorization from Congress. Historically, “sex” was tantamount to “biological sex,” and Congress has not provided clear guidance to the contrary in the Title IX context.

In the second case, Cummings v. Premier Rehab Keller, P.L.L.C., the Court likened Title IX, a Spending Clause statute, to a contract, the terms of which educational institutions must be fully aware of when they agree to accept federal funding. Both the States and educational institutions are expected to argue that they were not on notice and thus did not agree to the DoEd’s expanded definition of “sex” under Title IX to include discrimination based on sexual orientation and gender identity because those bases were not historically recognized, i.e., not contemplated when the statute was originally passed.

This blog will be updated with the details of any additional changes to the States’ lawsuit against the USDA and with status updates for the proposed Title IX regulations. In the interim, if you need assistance with this or any other higher education-related issues or questions for your institution, please contact Timothy Hughes, thughes@beankinney.com, or Doug Taylor, rdougtaylor@beankinney.com,  or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.