On April 29, 2024, the U.S. Department of Education issued a Final Rule which directed that under Title IX, discrimination ” on the basis of sex” includes discrimination on the basis of “sex stereotypes, sex characteristics, sexual orientation, and gender identity.” Our brief argued that the DOE Rule does not implement, but rather undermines Title IX. The Rule destroys personal privacy for women and girls; destroys women’s and girls’ sports; and censors the free speech rights of teachers and students. We argue that the Supreme Court’s Bostock decision should neither control nor inform a decision in this case. Finally, we point out that that the DOE Rule presupposes that biological sex is not an immutable reality, but rather a social construct, changeable at will.
