Title IX, the landmark federal law prohibiting sex-based discrimination in education, continues to face legal challenges and regulatory shifts as applied to collegiate athletics. The last Title IX blog post covered the lawsuit filed against the NCAA for allowing Lia Thomas to compete in swimming.[1]
Legal Challenges to 2024 Regulations:
The Department of Education (DOE) promulgated a 2024 Final Rule that was to be effective as of August 1, 2024.[2] The revisions broadened the definition of sex-based discrimination to include gender identity, sexual orientation, sex characteristics, and sex stereotypes.[3]
States, students, individual schools, and educational organizations have challenged these rules in various forums. The basis for most of these challenges is that the DOE, as an administrative agency, overstepped its authority under the Administrative Procedures Act. Several courts have held that the meaning of “sex” under the statute is a limited reference to biological differences between males and females, therefore the administrative expansion is beyond the statutory scope that Congress authorized.[4] Courts have granted preliminary injunctions preventing the Department of Education from enforcing these new regulations, among a total of 26 states[5], at schools in Kansas, Alaska, Utah, Wyoming[6], Texas[7], Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.[8] As one court noted, there are clearly states on the opposite side that would not seek an injunction against the regulations.[9]
NCAA and Colleges Face Uncertainty
The NCAA also faces legal challenges in this area. The current policy is that transgender athletes are eligible to compete in women’s sports in accordance with the guidelines of the national or international governing bodies for each sport.[10] A lawsuit filed earlier this year by former and current college athletes challenges the NCAA policy allowing transgender athletes to compete in women’s sports.[11] The claim is that biological women will not receive “equivalent treatment, benefits and opportunities” under this policy as required by Title IX.[12]
Schools Face Regulatory Whiplash
The legal battles have left many educational institutions uncertain how to proceed. Schools in states operating under a preliminary injunction prohibiting enforcement of the new federal regulations are required to follow the prior 2020 regulations. If they try to implement the new rules, they face violating the injunction. But schools in other states face lawsuits if they choose to not implement the new regulations in anticipation that future decisions will lead to further changes. Schools that did implement the new regulations this year still face liability if they are not able to roll back their policies quickly enough if a national injunction is granted or the regulations change.
Should everyone, including transgender athletes, be allowed to play the sports they love? Yes. But there is not yet a clear path under the law how schools will operate sports in the future.
[1] https://ublawsportsforum.com/2024/04/09/college-athletes-sue-the-ncaa-alleging-their-transgender-policies-violate-title-ix/
[2] https://www.ed.gov/about/news/press-release/us-department-of-education-releases-final-title-ix-regulations-providing
[3] Id.
[4] See, Kansas v. United States Dep’t of Educ., No. 24-4041-JWB, 2024 U.S. Dist. LEXIS 116479 (D. Kan. July 2, 2024), Texas v. Cardona, Civil Action No. 4:23-cv-00604-O, 2024 U.S. Dist. LEXIS 138639 (N.D. Tex. Aug. 5, 2024).
[5] https://www.edweek.org/policy-politics/supreme-court-leaves-bidens-title-ix-rule-fully-blocked-in-26-states/2024/08
[6] Kansas v. United States Dep’t of Educ., No. 24-4041-JWB, 2024 U.S. Dist. LEXIS 116479 (D. Kan. July 2, 2024).
[7] Texas v. Cardona, Civil Action No. 4:23-cv-00604-O, 2024 U.S. Dist. LEXIS 138639 (N.D. Tex. Aug. 5, 2024).
[8] Tennessee v. Cardona, Civil Action No. 2: 24-072-DCR, 2024 U.S. Dist. LEXIS 106559 (E.D. Ky. June 17, 2024).
[9] Id. at *128.
[10] https://www.deseret.com/sports/2024/10/03/utah-state-volleyball-transgender-forfeit/
[11] Complaint, Gaines v. NCAA, No. 1:24-cv-01109-MHC (N.D. Ga. Mar. 14, 2024), ECF No. 1.
[12] Id. at ¶25.
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.