Title IX Prohibits Sex Discrimination, Not Sex-Related Speech.
- Title IX prohibits schools from discriminating “on the basis of sex.”
- Under federal law, sexual harassment can be a form of sex discrimination.
- Because even offensive speech is protected by the First Amendment, the standard for holding a school liable for “hostile environment” sexual harassment under Title IX is narrow.
- In fact, Title IX is only implicated when a school is “deliberately indifferent” to behavior that is so severe, pervasive, and objectively offensive that it robs students of equal educational opportunities.
Nevertheless, Schools Often Crack Down on Protected Speech
- For decades, schools have used Title IX as an excuse to punish attempts at humor or political discourse regarding women, men, or sex roles.
- The suppression of sex-related speech was actively encouraged by the Obama administration, despite constitutional concerns.
New Biden Administration Rules Exacerbate the Problem
- New rules proposed by the Biden administration codify an overbroad definition of unlawful sexual harassment, despite Supreme Court warnings about the limits of Title IX.
- In additon, and without congressional or constitutional authority, the proposed rules unilaterally redefine the word “sex” to include “gender” and “gender identity.”
- Combined, these two distortions of Title IX encourage all schools that receive federal money to punish unpopular viewpoints on sex, gender, sex roles, gender identity, or pronoun usage.
- At least with respect to public schools, the new rules raise serious First Amendment concerns.
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