Gov. Abbott orders the Texas Education Agency to ignore updated Title IX guidelines

The new guidelines are also the subject of a lawsuit by Texas Attorney General Ken Paxton.

By Sarah AschMay 1, 2024 10:45 am,

Gov. Greg Abbott ordered the Texas Education Agency this week to ignore a Biden administration rule that adds new categories of protection within Title IX to include LGBTQ students. 

These new rules, which are set to go into effect in August, also spurred a lawsuit by Texas Attorney General Ken Paxton. The state’s AG office says “the Biden administration misinterpreted the intent of Title IX.”

Joanna Grossman, a law professor and the Ellen K Solender Endowed Chair in women and the law at Southern Methodist University, said it is within the Department of Education’s charge to interpret and implement Title IX.

“(Title IX) is a general ban on sex discrimination by educational institutions that receive federal funding. And the question that Paxton is addressing here is what does it mean to discriminate on the basis of sex?,” Grossman said.

“And what these regulations say is that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy-related conditions, and also sexual orientation and gender identity. This is very consistent with, first of all, the general meaning of a ban on sex discrimination. It’s also consistent with court interpretations of Title IX and other sex discrimination laws.”

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Paxon, however, is pushing back, saying that conversations about sex discrimination beyond women were not happening when Title IX was passed in 1972. However, Grossman said that’s not typically the question when these regulations are interpreted. 

“One of the ways we interpret sex discrimination is case by case. And that’s not just Title IX, but other sex discrimination laws,” she said. “The question is: The statute says ‘no sex discrimination,’ so what does that mean? And what the Supreme Court has said in many contexts, including under Title VII, the employment discrimination law, that if you have to take an employee sex into account to understand what has happened to them in a particular allegation, that’s sex discrimination.”

Paxton’s lawsuit is an attempt to prevent the updated guidelines from taking full effect in a few months.  

“And they are, as the Abbott administration often does, forum shopping by filing in a jurisdiction where they basically get to pick the federal judge in the hopes that they will find a sympathetic ear to these claims,” Grossman said. “So the lawsuit might well succeed at the trial court level because of the judge they were able to draw, but not because they have a compelling argument or even a reasonable argument.”

Grossman said she also anticipates a separate lawsuit against Abbott if his order to the TEA and other agencies to ignore the updated guidelines remains in place after the guidelines kick in. 

“To be clear, a governor of a state does not have the authority to order his people to ignore federal law. A federal law is supreme. So the idea that he can just sort of pick and choose and decide that Texas isn’t going to follow federal law is not one of his options,” she said.

“He probably will get sued over that once the regulations should take effect and are being effectively blocked by the governor. But at the end of the day, it’s the same issue in both situations, right? Whether it’s Paxton’s lawsuit or somebody suing Abbott for trying to block the regulations, the question is, does the Department of Education have the authority to do this? And have they interpreted Title IX in a way that’s consistent with how courts understand the statute?”

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