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A Florida law professor breaks down the state's battle with the federal government over Title IX

Sen. Manny Diaz Jr.
News Service of Florida
Florida Education Commissioner Manny Diaz, Jr., told state school officials to ignore the federal guidelines.

Recently released federal guidelines would extend protections under the law to include schools’ “obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.”

Florida's education commissioner is telling school districts not to comply with federal guidelines concerning gender and sexual orientation.

WUSF's Cathy Carter recently spoke with Stetson University law professor Louis Virelli, about the state and federal showdown over the interpretation of Title IX, which prohibits discrimination in education.

Professor, the commissioner said federal guidelines aimed at preventing discrimination against students based on such things as gender identity would “vastly expand the application” of Title IX.

Well, a little bit of background on why this happened. So, Title VII is a federal statute that involves discrimination in employment and the Supreme Court recently read the language in Title VII, the employment discrimination statute that says you may not discriminate because of sex, to include sexual orientation and gender identity. Once the Supreme Court said that the language “of sex” in Title VII included sexual orientation and gender identity, the federal government then interpreted Title IX to mean the same thing. The federal government announced that it was going to do this under new guidelines. It did not pass a regulation saying sexual discrimination in education includes discrimination on the basis of sexual orientation and gender identity, but it did say we will start to read the statute that way. That is an important announcement. Even though it is not itself a statement of law, it describes how the federal government is going to view something that is law, Title IX. That's why we see this cascading series of events, because when the federal government understands the statute to mean something, it acts as if the statute says that. That's what interpretation is. And that's what the federal government is doing. That federal law, when it is inconsistent with state law, wins. That's because the US Constitution says it does, in Article Six of the US Constitution. It is what we call the Supremacy Clause. It says that federal law is supreme. And what that means is when federal law and state law are in conflict with each other, the federal law wins.

So where do you think this matter is headed? Are Florida and other states for that matter, headed to the courts over this issue?

Yes, failing to comply with federal guidelines, when they are a viable interpretation of a federal statute, which is law, will be illegal. The question is going to be whether the courts read Title IX the same way they read Title VII. If they do, or if they more to the point, courts read Title IX as permitting federal agencies like the Department of Education, to understand “because of sex” to include sexual orientation, and gender identity, if courts decide Title IX can withstand or can include that interpretation, then anything inconsistent with the federal law on that point will be illegal and will be invalid.

So as far as the timeline next steps, how do you expect this to all play out in the legal arena?

The way this would typically happen, or one way it would typically happen, is the states that are opposed to the federal government's new interpretation to the guidelines would bring suit, what’s called a declaratory judgment action, but more importantly, we just bring suit asking the courts to say that guideline is not permitted by the statute. So, in other words, the federal government can only interpret a statute to mean what the statute means. The argument from the states will be reading the phrase “because of sex” to include sexual orientation and gender identity is irrational is inconsistent with what “because of sex” means “because of sex” simply doesn't mean that that will be the state's argument. And then the courts will have to decide which interpretation they prefer. That's why I wanted to make clear to listeners that Title VII which has the same language and it just in a different context, employment versus education, has already been interpreted by this Supreme Court, the current group of justices to include gender identity and sexual orientation.

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