What is Title IX and where is it going?
Updated: Aug 29, 2022
Child & Parental Rights Campaign is sounding the alarm to parents, educators, and community leaders about the Biden Administration’s sweeping new proposed regulations to Title IX that would promote radical gender identity ideology as mandated policy in our schools.
Title IX of the Education Amendments of 1972 regulates every public K-12 school, college, and university's in the nation, prohibiting discrimination “on the basis of sex.” As a result, Title IX impacts tens of millions of children and parents.
On July 12, 2022, the U.S. Department of Education published in the Federal Register a Notice of Proposed Rulemaking to rewrite the federal regulations that implement Title IX to expand the law’s scope, without Congressional approval, to include sexual orientation and gender identity. This will have devastating effects on parental rights, children’s well-being, First Amendment rights, and girls’ privacy, safety, and sports opportunities.
TITLE IX LEGAL MANUAL Table of Contents
Title IX Cover Addendum post-Bostock: Editor's Note Introduction
I. Overview of Title IX: Interplay of Title IX with Title VI, Section 504, Title VII, and the Fourteenth Amendment II. Synopsis of Legislative History and Purpose of Title IX III. Scope of Coverage A. Federal Financial Assistance B. Recipient C. Covered Education Program or Activity IV. Discriminatory Conduct A. General 1. Disparate Treatment 2. Disparate Impact 3. Retaliation B. Employment Discrimination 1. Scope of Coverage 2. Relationship to Title VII 3. Prohibited Employment Practices 4. Special Considerations 5. Regulatory Referral to EEOC C. Specific Provisions 1. Specific Prohibitions 2. Housing 3. Comparable Facilities 4. Access to Course Offerings 5. Counseling and Use of Appraisal and Counseling Materials 6. Financial Assistance 7. Employment Assistance 8. Health and Insurance Benefits and Services 9. Marital or Parental Status 10. Athletics 11. Textbooks and Curricular Material D. Sexual Harassment 1. Overview 2. General Legal Standards and Relationship to Title VII V. Procedural requirements for complying with Title IX A. Assurances B. Self-Evaluation C. Dissemination of Policy D. Designation of Title IX Coordinator E. Adoption of Grievance Procedures VI. Federal Funding Agency Methods to Evaluate Compliance A. Pre-Award Procedures 1. Assurances of Compliance 2. Deferral of Decision Whether to Grant Assistance 3. Pre-Award Authority of Recipients vis-a-vis Subrecipients 4. Data Collection 5. Recommendations Concerning Pre-Award Reviews B. Post-Award Compliance Reviews 1. Selection of Targets and Scope of Compliance Review 2. Procedures for Compliance Reviews C. Complaints VII. Federal Funding Agency Methods to Enforce Compliance A. Efforts to Achieve Voluntary Compliance 1. Voluntary Compliance at the Pre-Award Stage a. Special Conditions b. Use of Cautionary Language c. Other Nonlitigation Alternatives B. "Any Other Means Authorized by Law:" Judicial Enforcement C. Fund Suspension and Termination 1. Fund Termination Hearings 2. Agency Fund Termination Limited to the Particular Political Entity, or Part Thereof , that discriminated VIII. Private Right of Action and Individual Relief through Agency Action A. Entitlement to Damages for Intentional Violations B. Availability of Monetary Damages in Other Circumstances C. Recommendations for Agency Action D. Lack of States Eleventh Amendment Immunity Under Title IX IX. Department of Justice Role under Title IX
Since the attached Title IX Legal Manual was issued in 2001, sex discrimination jurisprudence has developed significantly. Notably, on June 15, 2020, the Supreme Court held in Bostock v. Clayton County that sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) encompasses discrimination on the basis of sexual orientation and transgender status. 140 S. Ct. 1731, 1741, 590 U.S. ___, ___ (2020).
Though Title VII and Title IX are two distinct statutes, their statutory prohibitions against sex discrimination are similar, such that Title VII jurisprudence is frequently used as a guide to inform Title IX. See Manual, Chapters I, IV. Indeed, in the months following the Bostock decision, several federal courts have reached the same conclusion as to Title IX, holding that Title IX protects transgender students from discrimination on the basis of gender identity. See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616-17 (4th Cir. 2020) (“Although Bostock interprets [Title VII], it guides our evaluation of claims under Title IX.”), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F. 3d 399 (4th Cir. 2020), cert. denied, No. 20-1163 (June 28, 2021); B.P.J. v. W. Virginia State Bd. of Educ., No. 2:21-CV-00316, 2021 WL 3081883, at *7 (S.D.W. Va. July 21, 2021); Koenke v. Saint Joseph's Univ., No. CV 19-4731, 2021 WL 75778, at *2 (E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-01486, 2020 WL 5993766, at *11 n.61 (M.D. Pa. Oct. 9, 2020). Other circuits reached this conclusion before Bostock, relying on their own Title VII jurisprudence. See Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049-50 (7th Cir. 2017) (transgender boy was likely to succeed on his claim that school district violated Title IX by excluding him from the boys’ restroom); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221-22 (6th Cir. 2016) (per curiam) (school district that sought to exclude transgender girl from girls’ restroom was not likely to succeed on the claim because Title IX prohibits discrimination based on sex stereotyping and gender nonconformity).
On March 26, 2021, the Principal Deputy Assistant Attorney General for the Civil Rights Division issued a memorandum to federal civil rights offices and general counsels addressing the application of Bostock to Title IX, determining that Title IX’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of gender identity and sexual orientation. See Letter from Pamela S. Karlan, Principal Deputy Assistant Attorney General for the Civil Rights Division, to Federal Civil Rights Directors and General Counsels (Mar. 26, 2021), www.justice.gov/crt/page/file/1383026/download. On June 22, 2021, the U.S. Department of Education issued a notice of interpretation clarifying that “[c]onsistent with the Supreme Court’s ruling and analysis in Bostock, the Department [of Education] interprets Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.” Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021). See also Letter from Suzanne B. Goldberg, Acting Assistant Secretary for Civil Rights at the Department of Education, to Educators (June 23, 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf.
Contact your members of Congress, local politicians, and local School Boards and let them know what your opinion about the Biden Administration’s sweeping new proposed regulations to Title IX that would promote radical gender identity ideology as mandated policy in our schools.