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Texas Legislature 2023

Texas AG sues Biden administration over Title IX interpretation

State law that limits transgender student athletes’ participation in sports runs afoul of the updated federal civil rights law, which was expanded to prohibit discrimination against LGBTQ students, potentially putting Texas schools at risk of losing federal funding.

by William Melhado

A track and field official places a shootout ball down after its use at the UIL State Track and Field meet, on May 11, 2023, at Mike A. Myers Stadium in Austin.
A track and field official places a shootout ball down after its use at the UIL State Track and Field meet on May 11 at Mike A. Myers Stadium in Austin. Credit: Kara Hawley/Austin American-Statesman via REUTERS

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The Texas attorney general’s office filed a lawsuit Wednesday against the Biden administration over its interpretation of Title IX — which was expanded two years ago to prohibit discrimination on the basis of sexual orientation and gender identity — arguing that noncompliance puts Texas schools at risk of losing federal funding.

This lawsuit highlights an existing rift between Texas legislation and the 51-year-old federal civil rights law.

In 2021, the Biden administration said that Title IX, which protects people from sex-based discrimination in educational programs and activities, also applies to LGBTQ students.

That same year, the Texas Legislature passed a law that bans transgender children in K-12 public schools from playing on sports teams that are aligned with their gender.

State law prohibits schools from following the Biden administration’s interpretation of Title IX, which the attorney general’s office said could put districts at risk of losing federal funding. During this year’s legislative session, Texas lawmakers passed Senate Bill 15, which expanded the existing restriction on transgender students to include athletics at the university level. And on Wednesday, Gov. Greg Abbott announced he would sign what he’s calling the “Save Women’s Sports Bill” this week.

“Texas is challenging this blatant attempt to misuse federal regulatory power to force K-12 schools, colleges, and universities in our state to accept and implement ‘transgender’ ideology — in violation of state law — by misusing the Title IX statute to threaten the withholding of federal education funds,” said a statement from the attorney general’s office announcing the lawsuit.

“The Administration’s unlawful guidance could put at risk over $6 billion in federal funding that supports Texas K-12 and higher education institutions.”

The lawsuit was filed by John Scott, who is serving as the interim attorney general. Ken Paxton was suspended and faces an impeachment trial in the Texas Senate later this summer. Paxton had previously been critical of Biden’s expanded Title IX regulations.

In the 2020 case Bostock v. Clayton County, the U.S. Supreme Court ruled that Title VII of the landmark Civil Rights Act of 1964, which bars employment discrimination on the basis of sex, applies to gay and transgender workers as well.

Subsequently, the Biden administration updated the Title IX regulations to comply with the Bostock ruling by prohibiting discrimination in educational activities and programs on the basis of sexual orientation and gender identity.

In April, the Biden administration proposed an amendment that would prohibit blanket bans barring transgender students from participating on sports teams consistent with their gender identity. The amendment applies to K-12 schools, as well as universities.

“Trans kids deserve to be respected in schools. Kids having their pronouns respected is a basic human right that cis people take for granted. Does the AG really want to tell Texas children that some kids deserve their teacher’s respect and others do not?” Johnathan Gooch, communications director for the LGBTQ advocacy group Equality Texas, said in a statement to The Texas Tribune.

“When the Supreme Court ruled that trans rights are part of Title VII protections, they rightly saw that trans and gender expansive people are protected under federal civil rights laws,” he said.

The attorney general’s announcement noted that this was Texas’s 50th lawsuit against the Biden administration.

Disclosure: Equality Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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William Melhado’s staff photo