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  • Writer's pictureRobert Lusk

Sixth Circuit Agrees: Title IX Does Not Apply To Sex Orientation Or Identity, At Least Not Today

Recent administrations have “yo-yoed” about Title IX’s applicability to sexual orientation and identity.  During the Trump administration, the Department of Education (DOE) issued guidance saying Title IX did not cover sexual orientation or identity.  During the Biden administration, the DOE reversed field and issued new guidance saying it did.


Twenty states, not including Michigan, challenged the DOE’s new Title IX guidance.  The United States District Court for the Eastern District of Tennessee agreed with the states, issuing a preliminary injunction prohibiting the DOE from enforcing guidance requiring public schools, colleges, and universities to treat sexual orientation and identity the same as biological sex.  DOE appealed and the Sixth Circuit affirmed in Tennessee v. Department of Education, Case No. 22-5807 (June 14, 2024).


It is important to understand how the Sixth Circuit reached this conclusion.  It was not because the Court thought DOE’s guidance, under the Trump or Biden administrations, was a good or a bad idea.  That’s a political judgment.  The Court reached its conclusion based on the way DOE issued its guidance.  The DOE did not publish proposed rules and permit public comment.  Instead, the DOE simply published memoranda and guidance announcing its new position.  The Sixth Circuit concluded DOE had the power to do the former but not the latter.


Does the Sixth Circuit’s decision matter?  Probably not much, at least until the next Republican administration changes or tries to change the regulations again.  The Court’s opinion notes a new Title IX final rule, which is consistent with the challenged guidance, will take effect on August 1, 2024.  So, why the bother?


Practically, the Sixth Circuit’s decision is another battle in an on-going war between conservative and liberal jurists about the power of administrative agencies.  Conservative judges argue they are protecting democratic principles by insisting that elected legislators, rather than unaccountable bureaucrats, write the law.  More liberal judges, by contrast, seem more focused on outcomes considered favorable or progressive rather than the process by which those outcomes are reached.  Unfortunately, public schools are often the field on which these interminable battles take place.

 


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