20 States Sue Over Title IX Guidance on Gender Identity

States sue the Department of Education and EEOC. Title IX of the Education Amendments Act of 1972—which says schools can’t discriminate “on the basis of sex”—has long been a battleground, as federal authorities continually expand the definition of just what discrimination on the basis of sex means. At stake is whether the federal government can get involved in and have the final say over a huge range of affairs at U.S. schools and universities, from sports teams to sexual assault investigations to which bathrooms students can use.

The Biden administration has interpreted Title IX’s anti-discrimination provision to include discrimination based on sexual orientation or gender identity. An executive order Biden issued his first day in office stated as much (building on Obama-era guidance). And in March, the Department of Justice issued a memo also stating that Title IX “prohibit[s] discrimination on the basis of gender identity and sexual orientation.”

In response, the Department of Education and the Equal Employment Opportunity Commission (EEOC) issued new guidance on federal anti-discrimination law.

It goes “far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit,” argue attorneys general from 20 states in a new lawsuit, filed in the U.S. District Court for the Eastern District of Tennessee on August 30.

The Department of Education said it “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department” and that the Office of Civil Rights “will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities.”

At the heart of the lawsuit are attempts by GOP-dominated state legislatures to ban transgender students from using bathrooms or playing on sports teams that correspond with their gender identity. A number of federal courts have already blocked such bills applied to schools.

The lawsuit also objects to EEOC technical guidance stating that employers must allow trans employees to use showers, locker rooms, and bathrooms that correspond with their gender identity.

States party to the suit include Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

Their complaint alleges that the Education Department’s interpretation of Title IX is “contrary to law because, properly interpreted, Title IX’s prohibition of discrimination ‘on the basis of sex’ does not encompass discrimination based on sexual orientation or gender identity” and “Title IX and longstanding Department regulations expressly permit distinctions based on biological sex in certain circumstances. ”

The interpretations “are so removed from any reasonable reading of Title IX that they amount to an unconstitutional exercise of legislative power,” their suit argues. It also alleges that the new EEOC guidance wasn’t subject to proper rule making procedure and that it violates the 10th Amendment.

You can read the full complaint here.

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FOLLOWUP

No last-minute intervention from SCOTUS before Texas abortion law takes effect. With no word yet from the U.S. Supreme Court, an abortion ban in Texas takes effect today. The American Civil Liberties Union and abortion providers had asked the Court to intervene and block the new law, which bans abortion around six weeks and lets people sue anyone who provides or aids and abets the provision of an abortion.

There is a report circulating that a state court judge blocked the law.https://t.co/F0A885eTaI

That is INCORRECT. The judge blocked two specific defendants from targeting one specific plaintiff under the law. The law IS NOT blocked.

Here is that order: https://t.co/8y5QXa1Eor

— Rewire News Group (@RewireNewsGroup) September 1, 2021

Also, as the near-total abortion ban takes place, Texas lawmakers are apparently trying to…ban abortion again?

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FREE MINDS

Leaving Afghanistan is “about ending an era of major military missions to rebuild other countries,” said President Joe Biden yesterday.

There was no perfect time or way to exit Afghanistan. President Biden directed the evacuation of more than one hundred thousand people and got our troops out. I disagree with the president on a lot, but I’m grateful he pushed through despite all the pressure.

— Justin Amash (@justinamash) August 31, 2021

Find a full transcript of Biden’s Tuesday Afghanistan speech here and find highlights here.

“This decision about Afghanistan is not only about Afghanistan. It’s about ending an era of major military missions to rebuild other countries,” IS A THING A PRESIDENT OF THE UNITED STATES JUST SAID

— Eric Boehm (@EricBoehm87) August 31, 2021

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FREE MARKETS

In a plan that seems destined to lead to unwarranted account suspensions, Instagram will monitor users’ accounts for truthfulness about their age. “To side-step users who enter incorrect birthday information, the company plans to leverage a new algorithm designed to analyze your posts and determine whether you’re telling the truth about how old you are or not,” reports Gizmodo.

“We recognize some people may give us the wrong birthday, and we’re developing new systems to address this,” Instagram said in its announcement. “As we shared recently, we’re using artificial intelligence to estimate how old people are based on things like ‘Happy Birthday’ posts.”

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QUICK HITS

New: Thirteen public-facing essential workers have been charged in Manhattan with purchasing fake CDC vaccine cards on Instagram for $200 a pop. Those charged work in NYC hospitals, medical and nursing schools, and nursing homes, according to the Manhattan DA. Story coming.

— Molly Crane-Newman (@molcranenewman) August 31, 2021

• A 21-year-old in Ohio was ordered to get the COVID-19 vaccine as a condition of his probation on a drug charge. A judge just lifted that order.

• As coronavirus cases in Florida rose in August, “the Florida Department of Health changed the way it reported death data to the CDC [Centers for Disease Control and Prevention], giving the appearance of a pandemic in decline, an analysis of Florida data by the Miami Herald and el Nuevo Herald found.”

• A viral video of the Taliban allegedly hanging a man from a helicopter isn’t what it initially appeared to be.

• In other fake news about Afghanistan:

To correct erroneous reports, the U.S. Military did not leave any dogs in cages at Hamid Karzai International Airport, including the reported military working dogs. Photos circulating online were animals under the care of the Kabul Small Animal Rescue, not dogs under our care.

— John Kirby (@PentagonPresSec) August 31, 2021

• The man who tried to extort Rep. Matt Gaetz (R–Fla.) has been indicted on fraud charges. “The scheme outlined in the indictment tracks with one Matt Gaetz, who in late March confirmed reports he was under federal investigation in connection to a sex trafficking investigation but denied committing wrongdoing, had also alleged at the time,” notes the Washington Examiner.

• How the “right to repair” might save you some money.

• 
What is the “dead-internet theory“?

• We’ve been hearing about how “monoclonal antibodies” are fighting COVID-19. Could they also fight unwanted sperm in a woman’s body?

• Anne Applebaum in The Atlantic on “the new Puritans.“

• The Biden administration continues to follow Trump-era immigration policy. “A Justice Department attorney argued Tuesday for American immigration officials’ authority to limit the number of asylum-seekers allowed to cross into the U.S. from Mexico each day, even as President Joe Biden’s administration is attempting to distance itself from the Trump administration’s policy imposing caps on asylum applicants at border ports of entry,” notes Politico.