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.

Click HERE to read the full policy focus and learn more about Title IX and the First Amendment.