College Signs Legal Brief Challenging Administration’s Title IX Interpretation

Joining Catholic and other Christian educators across the United States, Thomas Aquinas College has signed onto an amici curiae brief in the case of Gloucester County School Board v. G.G. The case, which the U.S. Supreme Court has agreed to hear later this year, will consider the Obama Administration’s claim that, under Title IX, educational institutions must interpret the term “sex” as including “gender identity” — and as such allow students to choose bathrooms, locker rooms, and dormitories irrespective of their biology.

The Brief of Amici Curiae Religious Colleges, Schools, and Educators, filed Monday by attorneys from First Liberty, represents the opinion of nearly two dozen religious educational organizations, colleges, schools, and academics. Among them are Thomas Aquinas College, The Cardinal Newman Society, Aquinas College, Benedictine College, John Paul the Great Catholic University, the Thomas More College of Liberal Arts, and Wyoming Catholic College.

The brief makes two specific legal arguments: First, that the Obama Administration ran afoul of federal notice-and-comment laws by issuing its novel Title IX interpretation without seeking and weighing the opinion of affected institutions. Second, the brief contends that the legal doctrine of “avoidance” — which requires that, when a statute is open to more than one reasonable interpretation, courts eschew those interpretations that are constitutionally problematic — precludes the Obama Administration’s attempt to redefine the word “sex.”

“When those wielding government power — whether legislators or administrators — enact public policy that confers rights or imposes obligations upon the public, the Constitution ensures that those who are impacted have a meaningful opportunity for their voices to be heard before the law governing them changes,” the brief argues. The document cites the Administrative Procedure Act (APA), which requires prior statement of the time, place, and nature of federal rulemaking, allowing concerned citizens to file comments about proposed rules and obliging the government to meaningfully consider citizens’ comments in drafting regulations.

According to the brief, the Administration met none of these requirements in 2015 when Acting Deputy Assistant Secretary for Policy James Ferg-Cadima issued the so-called “Ferg-Cadima letter,” proclaiming the reinterpretation of Title IX. The brief also notes, regarding the question of avoidance, that “the most natural reading of the word ‘sex’ in Title IX does not mean ‘gender identity.’”

“First Amendment concerns are every bit as present when rules are being contemplated as when legislation is being proposed,” the brief observes. “Citizens and groups are guaranteed an opportunity to thereby participate in rulemaking before the legal landscape changes around them, and the APA requires policymakers to carefully consider this input before promulgating final rules.”