Americans on the whole have an aversion to censorship. When someone tells them to shut up or keep quiet, there is an animating spirit that drives them to speak even louder, to make noise, and to be authentic to their voice. This spirit is what led American presses to launch countless pamphlets and newspaper editorials decrying Great Britain’s Intolerable Acts, calling for revolution. It is what pushed journalists to uncover government abuses throughout our history. Those who stand up for the First Amendment are inheritors of that same spirit.
Yet, just as powerful as the right to speak one’s mind is the right to not speak. The right to refuse to repeat the dictates of someone else. The right to dissent encompasses both speech and silence.
In a case called West Virginia State Board of Education v. Barnette, Justice Jackson said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word their faith therein.”
No government entity or bureaucrat can command someone to adopt language, to force an opinion, or to betray their thoughts through expression. To compel speech is a violation of the freedom of speech writ large.
Yet, that is precisely what is at stake with the federal Department of Education’s (DOED) recent actions in the area of Title IX, which threaten to compel the speech of countless teachers, students, and school officials across the nation. In one lawsuit, the State of Tennessee, along with 19 other states, sued to block a June 2021 announcement by the Department that it would be interpreting Title IX to force schools to cover gender identity and sexual orientation issues. Tennessee won, but the Department has appealed, and Mountain States has chimed in with an amicus in support of Tennessee’s lawsuit.
Case Background
Passed in 1972 as part of the Education Amendments Act, Title IX is a law that states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
For such a short statute, Title IX is expansive in covering every public school, and nearly every university (public or private) in the country. The legacy of Title IX is most visible in the rise of women’s participation in school athletics. But Title IX also impacts how schools define discrimination and sexual harassment, and the DOED establishes official guidance and rules for implementing and enforcing the law’s mandates.
What is at issue in this case is the very word “sex.” In today’s age of confused language— where the meaning of words has become a hotbed of relativism—it can be difficult to know what exactly this word means. But, if regulators, attorneys, and judges use basic common sense and understand how to read laws as they were written, the definition becomes quite clear.
In a bevy of dictionaries from the 1970s, the definition of “sex” shares one common characteristic: each refers to the biological, binary nature of reproductive functions.1 The recent Florida case of Adams v. School Board of St. Johns County ruled that Congress—using the language of that decade—specifically referred to biological “sex” when crafting Title IX. The definition of that word at that time means that legislators meant for “sex” to mean nothing other than the two biological descriptors of “male” and “female.”
But on his first day in office, President Biden ordered federal agencies to re-interpret federal anti-discrimination law and regulations to prohibit discrimination on the basis of fluid and expansive definitions of gender identity or sexual orientation. The DOED complied, and issued a notice of interpretation in June 2021, interpreting the word “sex” to additionally incorporate both gender identity and sexual orientation. But the law as written in 1972 does not support the DOED’s new interpretation.
Join the Fight
Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.
What’s at Stake
What are the implications of that interpretation? They are far and wide, but Mountain States is most especially concerned with how the Biden Administration’s interpretation will affect the freedom of speech.
Title IX requires recipients of federal funds not to discriminate “on the basis of sex.” If “sex” is interpreted as including sexual orientation and gender identity, what would happen on a campus if a teacher refused to call a student by their “preferred pronouns?” Must professors and students be compelled to utilize words and phrases that they find inappropriate, lest they become the targets of discrimination lawsuits?
This far-reaching reinterpretation of Title IX threatens to make public teachers, students, and school officials puppets of the state and its ideological objectives. MSLF is offering an amicus brief in support of Tennessee to shine a light on the fact that the DOED’s new interpretation is nothing more than compelled speech in disguise. On top of the fact that the DOED has attempted to subvert Congress’s authority to legislate by adding meaning where Congress did not, the Notice of Interpretation flies in the face of Title IX’s original purpose: to stop discrimination between boys and girls in schools.
This is why we have urged the Sixth Circuit Court of Appeals to uphold the district court’s ruling, and affirm the injunction against DOED’s improper Title IX interpretation.
Case Timeline
- January 2021: President Joe Biden ordered federal agencies to re–interpret federal anti-discrimination law and regulations to prohibit discrimination on the basis of gender identity and sexual orientation, not just on the basis of sex.
- June 2021: Relying on a faulty and overly expansive interpretation of the Supreme Court’s decision in Bostock v. Clayton County, the DOED issued an Interpretation and Fact Sheet to reinterpret “sex” under Title IX without public comment or notice.
- August 2021: Tennessee and 19 other states sued the DOED to halt the enforcement of the new interpretation.
- July 2022: The US District Court for the District of Eastern Tennessee preliminarily barred the DOED from enforcing the interpretation.
- December 2022: DOEd appealed to the Sixth Circuit.
- January 2023: Mountain States Legal Foundation filed a brief of amicus curiae to permanently enjoin the DOEd’s interpretation.
- June 2024: The Sixth Circuit affirmed the US District Court for the District of Eastern Tennessee’s 2023 ruling, affirming the injunction against the DOEd’s Title IX guidance documents.
Footnotes
[1] 1. Sex, American Heritage Dictionary of the English Language (1976) (“The property or quality by which organisms are classified according to their reproductive functions.”); 2. Sex, American Heritage Dictionary of the English Language (1979) (same); 3. Sex, Female, Male, Oxford English Dictionary (re-issue ed. 1978) (defining “sex” as “[e]ither of the two divisions of organic beings distinguished as male and female respectively,” “female” as “[b]elonging to the sex which bears offspring,” and “male” as “[o]f or belonging to the sex which begets offspring, or performs the fecundating function of generation”); 4. Sex, Webster’s New World Dictionary (1972) (“[E]ither of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions.”); 5. Sex, Female, Male, Webster’s Seventh New Collegiate Dictionary (1969) (defining “sex” as “either of two divisions of organisms distinguished respectively as male or female,” “female” as “an individual that bears young or produces eggs as distinguished from one that begets young,” and “male” as “of, relating to, or being the sex that begets young by performing the fertilizing function”); 6. Sex, Random House College Dictionary (rev. ed. 1980) (“[E]ither the male or female division of a species, esp. as differentiated with reference to the reproductive functions.”).