Law & Principles

Oklahoma part of pushback on Biden Title IX rewrite

April 30, 2024

Ray Carter

On April 19, the Biden administration announced it was issuing regulations to dramatically rewrite federal Title IX law, which was originally designed to prohibit discrimination against women in educational settings.

Among the most significant changes was that the Biden administration would now apply the law to “gender identity.”

In essence that shifted the law from one that provided equal opportunity to women and girls in educational settings to one that protected the rights of men to enter women’s spaces and take women’s places in many settings—so long as the male claims to identify as a woman.

Oklahoma officials were among the first to push back, but they are not alone.

On April 24, State Superintendent of Public Instruction Ryan Walters issued a letter to Oklahoma schools, noting that the Biden administration’s changes “are illegal and unconstitutional” and violate citizens’ First Amendment rights and “longstanding civil rights protections for women and girls.”

Walters noted legal challenges were likely and that complying with the Biden administration’s dictates would involve violating Oklahoma state laws on a host of issues.

“Please do not make any district policy changes based on the new Title IX regulations,” Walters wrote. “These federal rule changes are illegal and making policy changes before the courts come to a definitive ruling on the legality of these rules could put your district out of compliance with other current and legal state and federal statutes.”

Walters was not alone in issuing that message to state schools.

The state superintendent of Louisiana issued a similar letter to schools in that state, as did South Carolina State Superintendent Ellen Weaver, who wrote that the Biden rewrite “would rescind 50 years of progress and equality of opportunity by putting girls and women at a disadvantage in the educational arena.”

Florida Commissioner of Education Manny Diaz Jr. also issued a similar letter to state schools and separately declared, “Biden’s proposed changes will harm students and eliminate protections for girls at school. We will not fall in line with this radical agenda!”

As originally passed in 1972, Title IX prohibits sex discrimination in educational programs and activities at schools and colleges that receive federal funds.

But under the Biden administration’s regulatory rewrite of the law, which is set to take effect on Aug. 1, Title IX will now target many women with the threat of sexual-harassment investigations if they object to the presence of males in bathrooms, locker rooms, or on women’s sports teams.

On the April 27 Morning Wire podcast, Sarah Parshall Perry, a senior legal fellow at The Heritage Foundation and former senior counsel to the assistant secretary for civil rights at the U.S. Department of Education, said the Biden administration’s rewrite “is really going to upend the equality of women and girls all across the country in every single education program that accepts so much as a dollar of federal funding.”

She noted the Biden regulations even allow students to be subjected to a Title IX sexual-harassment investigation if a girl “misgenders” someone—such as referring to a man in a dress as “he.”

“This is actually going to shoehorn speech codes, which we know are unconstitutional, into every publicly funded education program,” Perry said.

Elizabeth Grace Matthew, a visiting fellow at Independent Women’s Forum, recently called the rewrite “an unforgivable affront against women’s equality” and “tantamount to the erasure of women under the law.”

“Under this law, any male claiming to be female will be permitted to enter girls’ and women’s bathrooms and locker rooms, and to participate in women’s teams and organizations,” Matthew wrote. “A female student who objects to admitting a male to a team or organization intended for women, or who personally feels uncomfortable in a locker room with a male, will now be faced not just with social stigma but with potential legal repercussions for her school, team, or organization.”

Supporters of the Biden administration’s rewrite agree with much of the analysis put forth by critics.

A press release issued by the Human Rights Campaign, which advocates for transgender causes, declared that the Biden administration’s rewrite of Title IX “means students can use the bathroom and locker rooms consistent with their gender identity,” and that the regulations mean school officials and children “can’t intentionally misgender students.”

Legal challenges now being pursued

As predicted by Walters and other state superintendents, legal challenges to the Biden administration’s rewrite of Title IX are already underway.

In response to the regulations, Florida Gov. Ron DeSantis declared, “Florida rejects Joe Biden’s attempt to rewrite Title IX. We will not comply, and we will fight back. We are not going to let Joe Biden try to inject men into women’s activities. We are not going to let Joe Biden undermine the rights of parents, and we are not going to let Joe Biden abuse his constitutional authority to try to impose these policies on us here in Florida.”

Now, Florida has filed a lawsuit challenging the regulations and has been joined by Alabama, Georgia, and South Carolina.

The complaint filed by the four states notes, “The challenged rule redefines ‘sex’ to include ‘gender identity’ and ‘sexual orientation,’ declares unlawful longstanding policies requiring individuals to use bathrooms matching their biological sex, and upends the foundation of women’s sports. All illegal.”

Republican attorneys general in several other states have also filed lawsuits challenging the Biden administration’s Title IX rewrite, including in Texas, Louisiana, Mississippi, Montana, and Idaho.

The complaint filed jointly by Louisiana, Mississippi, Montana, and Idaho calls the Biden administration rewrite “an affront to the dignity of families and school administrators everywhere, and it is nowhere close to legal” and states that the rewrite “does extraordinary violence to Title IX.”

“Forcing a young girl to change clothes in front of a boy or man in a locker room is entirely antithetical to the dignity and respect that Title IX was intended to preserve and advance,” the four-state complaint states. “So, too, is forcing children of opposite sexes to share adjoining stalls in the traditionally private space of a bathroom. These are not close questions.”

The Texas complaint declares that the Biden administration’s mandated-via-rewrite “protections for an ever-fluctuating number of gender identities and sexual orientations, which individuals can allegedly change at any time, anywhere, and for any reason, undermines Title IX’s original sex-based protections.”

Oklahoma lawmakers call for review of federal funds

The ultimate penalty for non-compliance with Title IX regulations is the withdrawal of federal funds, leading some Oklahoma lawmakers to call for the state to review its reliance on federal funding in schools and consider ways to eliminate and/or replace it.

“We must prioritize the well-being of Oklahoma’s children and explore all options to replace federal funds tied to Title IX,” said state Rep. Cody Maynard, R-Durant. “Oklahoma has the money to replace federal funding in our schools, and we must consider all possible avenues to protect our children. We cannot allow the Biden Administration’s radical policies to dictate education in Oklahoma.”

“For three years, I have sounded the trumpet that not only is federal funding of state education unconstitutional but it is also a bad idea,” said state Sen. David Bullard, R-Durant. “This is exactly why. The liberals have been threatening to defund our schools in cruel and unusual ways. The state of Oklahoma must have a plan on how we will replace these funds so we cannot be manipulated into doing that which we cannot morally do.”

“Given that Title IX regulations now include gender identity and sexual orientation, failure to comply may result in the withdrawal of federal funds,” said state Rep. Chris Banning, R-Bixby. “In protecting our values and supporting our children, we must oppose Biden, whose administration clearly contradicts Oklahoma’s values.”

“We must stand by Oklahoma children and safeguard our state’s values,” said state Sen. Warren Hamilton, R-McCurtain. “Tying school funding to ideologies relating to gender identity and sexual orientation does not align with our values. I am confident our state can find innovative ways to replace federal funding to ensure our students are not subjected to these principles.”