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Alabama Attorney General Steve Marshall discussed his continued fight against Biden administration protections against sexual discrimination and harassment during an Aug. 21 appearance on conservative talk radio show, Right Side Radio.
The April 19 revision to Title IX of the Education Amendments of 1972, according to the Department of Education, “prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance.” The rule also extends the scope of sexual harassment definitions and guidelines for responding incidents of harassment.
Originally set to go into effect Aug. 1, the new set of regulations has been blocked by the 11th Circuit Court of Appeals.
The court granted a request for an administrative stay to delay the implementation of the new rule as part of a suit filed against the Department of Education by Alabama, Florida, Georgia and South Carolina, as well as four advocacy organizations.
During his call on a conservative radio show, Marshall celebrated the court’s ruling, framing the Biden Administration rule as a case of federal overreach being used to promote protections based on legal recognition of gender identity as opposed to sex assigned at birth.
This shift is one Marshall claims will threaten conventions surrounding gendered spaces and the separation of genders in sports, saying the rule, “opens the door of female locker rooms to men would change the law that Alabama passed that says boys compete against boys and girls compete against girls.”
“I can guarantee you when this bill passed with bipartisan support in 1972 to create greater opportunities educationally for women nobody—nobody believe that there was anything other than a male and a female, that God created you as what your sex was and nobody believed that—that was a bill passed to be able to open up locker rooms in sports to those who suddenly identified with the other gender,” Marshall said.
The rules make no mention of sports teams being required to be congruent with one’s gender identity, however.
The DOE instead wrote, “The Department recognizes that participation in team sports is associated with many valuable physical, emotional, academic, and interpersonal benefits for students and that recipients seek greater clarity on how to comply with their Title IX obligations when determining students’ eligibility to participate on a sex-separate athletic team consistent with their gender identity.”
In light of these requests, the department intends to publish a separate set of regulations related to sex related eligibility criteria for athletic teams.
Meanwhile, The Department of Education has emphasized the rule’s importance in protecting LGBTQ+ students from discrimination.
U.S. Secretary of Education Miguel Cardona expressed hope that the rule would expand the protections provided by Title IX saying, “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”
Marshall claimed federal funds were being used to coerce shifts in how schools define gender.
“Now we’re seeing, particularly with Title IX but there’s other areas as well, the effort to push this radical gender ideology is tied to federal money that’s coming in,” said Marshall. “There is no such thing as free money coming from Washington, and we have to be mindful of that.”
Marshall also claimed the rule could be used to stifle teachers from endorsing conservative principles, saying the rule would, “extend a certain First Amendment protection so that they could argue that if, for example, a teacher or admin had a tweet in which they were endorsing Christian principles about what creation truly means and gender being what God created you as—that could become an argument to use Title IX against them.”
According to the rule, sex discrimination includes “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Title IX regulations dictate a swift response to complaints of sex discrimination and harassment in person or on social media and an educational environment free from sex discrimination.
Conduct on social media that could be subject to response from a Title IX coordinator is defined as, “sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”
In the rule, the DOE states its disagreement with allegations that they are attempting to limit “potentially offensive” yet constitutionally protected speech, such as Marshall’s claim regarding teachers’ conduct on social media.
The department instead writes that Title IX coordinators have no obligation to respond to any speech or conduct, “other than that which reasonably may constitute sex discrimination.”
A total of 26 states have filed lawsuits to block the updated Title IX regulations from taking effect.
On Aug. 16 The Supreme Court blocked an emergency request from the Department of Justice to allow portions of the rule that don’t deal with gender identity to be enforced in states where these challenges have blocked the rule. These states instead have continued to adhere to Trump-era Title IX regulations.
Certain schools in states where injunctions have not been filed to block the rule may be subject to the Trump-era rules as well.
A ruling out of the Kansas U.S. District Court upheld an injunction blocking the rule requested by Kansas, Alaska, Utah and Wyoming, as well as Moms for Liberty, Young America’s Foundation and Female Athletes United. This injunction applies to the four states as well as schools attended by children of Moms for Liberty members and the suit’s other plaintiffs.
“They’ve been able to obtain relief for many institutions in blue states,” said Marshall who commended Moms for Liberty’s ability to help expand blocks on the new regulations. “I think it’s over 2,000 institutions across the country are just impacted in a positive way from them alone but, look, we’ve got still a ways to go in the fight but we’re proud of the fact that courts have acknowledged that the Biden Administration has simply gone too far.”
Amongst the list of K-12 schools to be subject to the injunction, Moms for Liberty included schools in 46 states including 22 not challenging the rule.
