On June 19, the Utah legislature passed resolutions directing state government entities to ignore the Biden administration's new interpretation of Title IX, joining numerous other states who have opposed the administration's proposed expansion of anti-discrimination protections.
The two resolutions, HCR301 and HJR301, declare through "legislative findings" that the new rules are an "overreach of federal administrative authority."
The issue stems from the Biden administration's proposed interpretative rule, released in April, which would expand the enforceable scope of Title IX of the Education Amendments Act. Title IX bars discrimination "on the basis of sex"; the Biden administration's new rule interprets this clause as prohibiting discrimination based on "sexual orientation" and "gender identity." Opponents say the Department of Education's new rule could force states to allow biological men to play in women's sports.
The new rule, which uses 423 pages to clarify a clause that is 37 words long, is set to go into effect on August 1.
But whether it will go into effect is increasingly a matter of dispute. With the passage of the recent resolutions, Utah joins a growing number of states—including Texas, Louisiana, and Arkansas—that are officially ignoring the Biden administration's new Title IX rules. Additionally, 26 state Attorneys General have filed lawsuits against the Department of Education challenging its interpretation.
"We are a sovereign state and do not want the federal government telling us what to do," Utah state Rep. Trevor Lee (R–Layton) told Reason when asked why he voted in favor of the resolutions. "We decided already on these issues as a state."
Opponents of the law say the new rule is an incorrect interpretation of the statute and does not reflect the intentions of the original lawmakers. "It is concerning how the Executive Branch is unilaterally altering laws, circumventing Congress and compromising due process, thereby exceeding its constitutional authority," Utah state Sen. Curt Bramble (R–Provo) told Reason.
The Biden administration claims its new rule follows the Supreme Court's precedent in Bostock v. Clayton County (2020), which determined that Title VII of the Civil Rights Act of 1964—which protects against workplace discrimination on the basis of "sex"—includes at least some protection for sexual orientation and gender identity.
Relying heavily on this precedent, the Department of Education's new Title IX rule cites Bostock more than 60 times to justify its interpretation.
But the Court's decision in Bostock was intentionally narrow, encompassing only the question of "an employer who fires someone simply for being homosexual or transgender," as Justice Neil Gorsuch wrote for the 6–3 majority. Explicitly, the Court did not attempt to address any questions beyond Title VII, including those raised by "other federal or state laws that prohibit sex discrimination," such as Title IX.
This uncertainty over Supreme Court precedent led a federal judge in Kentucky to stay the Biden administration's new Title IX rule in six states—Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia—because the new rule "contravenes the plain text of Title IX by redefining 'sex' to include gender identity" and is the result of "arbitrary and capricious rulemaking."
The Kentucky case was decided on June 17. The Biden administration is expected to appeal.
In its appeal, the administration might argue that Bostock, despite its focus on Title VII, nonetheless logically extends to Title IX because the two statutes are structurally similar, and in both cases, the dispute is over the meaning of the word "sex."
"[T]here is no principled reason to interpret the meaning of 'sex' in both statutes differently," Professor Ken M. Levy of Louisiana State University Law School tells Reason. "Bostock does therefore effectively extend to Title IX and the Dept. of Education is right to say that schools may not discriminate against gay and transgender students."
States will likely counter that "Title IX raises more complicated issues than Title VII," according to Douglas Laycock, professor emeritus at the University of Virginia School of Law, "including trans women in women's sports competitions, locker rooms, and showers." All of those factors contribute to making this case substantially more complex than Bostock.
"I don't know which way the Supreme Court will go on this," adds Laycock. "My guess is that they will say Title IX applies to sexual orientation and gender identity, and then interpret Title IX to allow some exceptions."
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