ACR Project Files Amicus Brief with Sixth Circuit, Supporting Tennessee’s Challenge to Biden Administration’s Re-Writing of Title IX

When the Biden Administration released its rule re-writing Title IX, a host of states filed challenges to the legality of its proposed regulation.  So far, more-than-half the states have gone 8/8 in those cases, winning statewide injunctions against the rule’s effectiveness.  The Administration has appealed those rulings.  The Sixth Circuit Court of Appeals became the first to reach the point of accepting merits briefing.

Yesterday, the ACR Project answered the bell and submitted an amicus supporting the states.  You can read it below.

We focus primarily on two provisions of the New Rule.

First, we explain how one openly rewrites Title IX’s scope, while the other does the same more subtly.

Then we explore the deep flaws in the Administration’s justifications of these rewrites.  The first badly misreads the Supreme Court’s Bostock and Price Waterhouse decisions.  It severs shorthand versions of their holding from their reasoning to follow where those cases do not lead.  The second, on the other hand, relies on cherry-picked legislative history to refashion Title IX’s text in ways belied by the actual history of the 1970s.

Finally, we highlight that, although the Administration does not draw together their contentions supporting these two provisions, their joint implications are real and iron-clad.  They would together require what supporters of the ERA have aggressively denied for a generation.  Together, these provisions would mean that all school single-sex bathrooms, locker rooms, and showers have been illegal since 1972.  They would further mean that all school single-gender bathrooms are equally illegal today.

Title IX is wiser than the Biden Administration.  It requires no such thing.  Title IX allows different populations and school systems to choose what it is best for them.  It allows different families and students to find the best match for their needs.  The Administration’s imposition of a one-size-fits-all approach is both bad law and bad policy.