21 Republican attorneys general take aim at Biden administration’s Title IX interpretation

Dive Brief:

  • A group of 21 Republican state attorneys general wrote to President Joe Biden on Wednesday arguing the administration “misconstrued federal law” when it interpreted Title IX to broadly protect gay and transgender individuals from discrimination. 

  • The U.S. Department of Education said last month that the federal sex discrimination law applies to sexual orientation and gender identity, relying on a landmark U.S. Supreme Court ruling last year. 

  • The Biden administration also intends to overhaul the rules under Title IX,  which were put in place by former Education Secretary Betsy DeVos and drew ire from sexual assault survivor advocates. 

Dive Insight:

The Biden administration last month said that a 2020 Supreme Court ruling, Bostock v. Clayton Countywhich established protections for gender identity and sexual orientation in federal employment lawalso extended to Title IX, the law banning sex-based discrimination on college campuses. 

Title IX contains similar language to Title VII, the employment law blocking discrimination based on race, color, religion, sex and national origin. 

Yet the Republican AGs wrote in Wednesday’s letter that the Biden administration is attempting to “rewrite” Title IX without going through proper legal channels. The White House’s interpretation “represents a 180-degree change from the position” the Trump administration took several months prior, the AGs wrote. 

The Trump Education Department in January published a memo rejecting that Bostock applied to Title IX. The two federal laws are “different … in many important respects,” including that Title IX allows for activities and certain facilities to be segregated by sex, the Trump administration said

The AGs in their letter also criticized recent guidance from the U.S. Equal Employment Opportunity Commission, also citing Bostock, saying that employers must accommodate workers on certain issues, including dress code and pronouns.

“By unilaterally plunging ahead with these sweeping dictates, your administration harms the rule of law and undermines the legitimacy of these executive agencies,” the AGs wrote, calling on Biden to work with them to resolve these concerns. 

An Education Department spokesperson on Friday referred a request for comment to the EEOC. 

An EEOC spokesperson said in an emailed statement that the agency “routinely provides technical assistance to assist the public in understanding” the laws it enforces. 

The guidance issued last month does not state new EEOC policy “but simply gathers in one place the Commission’s prior positions on these issues along with a straightforward, accessible explanation of the Supreme Court’s decision in Bostock v. Clayton County,” according to the spokesperson.

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