A multi-state revolt against the Biden administration’s rewrite of Title IX has a legal component, too. It’s bad law, Missouri Attorney General Andrew Bailey said on Washington Watch Friday.
Title IX, the landmark federal legislation of 1972, prohibits discrimination on the basis of sex in education programs and activities receiving federal funds. All public and private elementary and second schools, school districts and universities must comply.
The Department of Education in April released new Title IX mandates that included protections for gender identity at the risk of students who identify as their biological sex. Translation: males who present themselves as females would be welcome on girls’ sports teams, in changing areas, and other areas previously designated as female-only.
Last week, a federal district court in Missouri became the latest to rule against the new definition of Title IX.
The new regulations were scheduled to take effect Aug. 1, but the onslaught against the Department of Education began when a Louisiana judge issued the first ruling against it June 13.
In Missouri, Judge Rodney Sippel issued a preliminary injunction which halts implementation of the new Title IX. The injunction applies to Missouri, Arkansas, Iowa, Nebraska, North Dakota and South Dakota, and it brings the total number of affected states to more than 30.
“So, bathrooms, locker rooms, hotel rooms for overnight travel, all of those things that President Biden wanted to allow men to intervene in, we put a stop to it," Bailey told show host Jody Hice.
"This is as much about the policy position of protecting women's equality, the sanctity of women's sports and safety as it is about the legal aspect. Nothing has authorized the president to amend Title IX for the last 50 years,” Bailey added.
Before the rewrite, Title IX was celebrated
In its original form, Title IX was celebrated by feminists in the 1970s who demanded equality on college and university campuses for girls and women.
When it was approved by Congress, the law stood for equal access to sports for women, Bailey said.
While the Biden administration pondered drastic changes, the NCAA kicked off a year-long celebration of the 50th Anniversary of Title IX in January of 2022.
“President Biden, through the stroke of a pen, sought to override (Title IX) and allow men into women's sports, thereby perverting the plain text of the statute. I'm proud to say we delivered a win on this one, and we're going to keep fighting on this issue,” Bailey said.
The lawsuit argues that the DOE exceeded its authority in rewriting Title IX. The rewrite undoes “decades” of how Americans have come to understand Title IX and actually creates controversy by redefining sex to include gender identity.
Sippel, a Bill Clinton appointee, notes in the ruling’s conclusion that the decision is “consistent with other federal courts across the country.”
At least two federal appeals courts have upheld rulings in similar cases.
“At the end of the day, the plain text of Title IX could not be more clear,” Bailey said. “Not even a Democratic-appointed judge could go so far as to pervert the law and authorize the executive branch of government, the president of the United States, to undermine what Congress had put into place. It (would) violate our separation of powers doctrine and again, a plain textual analysis of this statute precluded the act that the president took.”
Bailey believes Title IX will survive
The lawsuit continues in litigation, but Bailey predicts the original Title IX -- “a landmark in the fight for equality for women” -- will win out.
“It has stood for 50 years in the sediment of case law that has built up interpreting that statute. The president can't rewrite law without an act of Congress, and Congress is absolutely not going to undermine 50 years of women's equality,” Bailey said.
