The Biden Administration finalized new rule changes in April to clarify the sex-based discrimination it prohibits includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. It also clarifies that prohibited sex-based harassment includes harassment for these characteristics and rolls back Trump-era policies for handling allegations of sexual misconduct.

In a Monday press release, Drummond said the changes ignore the purpose behind Title IX’s creation, disregard the “lack of public support” for the changes and “jeopardizes the equal opportunity that has been afforded to female athletes ever since the establishment of the statute.”

In his own press release, State Superintendent Ryan Walters said the changes have “set back the cause of civil rights for women by generations.” He said women and girls’ futures are being jeopardized by President Joe Biden and the “out-of-touch leftist bureaucrats that permeate Washington, D.C.,” and the changes are “rooted in radical gender theory that ignores biological reality.”

What do the lawsuits say?

The filing from Drummond largely focuses on fair, competitive spaces for biologically female athletes, alleged misuse of Supreme Court precedents and Constitutional violations. Drummond argues:

• Existing Supreme Court precedent recognizes “natural differences” between men and women.
• Statutes should be read to include consideration of the law’s text, structure, history and purpose. Title IX barred discrimination based on sex, not the distinct term, “gender identity.”
• The rule changes rely on a Supreme Court case about employment discrimination in violation of Title VII — not Title IX — in which the court ruled workplace sex discrimination also included sexual orientation and gender identity. In that case, the court explicitly did not address bathrooms or locker rooms and said its ruling was confined to Title VII.
• The new rule expands harassment prohibitions, which could risk running into any speech or religious expression that could be considered unwelcome, offensive or limiting a student’s participation.
• Per the Tenth Amendment, these issues must be left up to the states. The rule conflicts with Oklahoma’s Save Women’s Sports Act. 
• It usurps the authority of Congress to make new legislation. “While agencies do have authority to propose new rules, that authority does not extend to rules which go against statutory language and longstanding interpretation of the law.”
• The rule will create confusion about how transgender athletes should be treated based on the type of sport, level of competition, age, skill, size, strength and development.
• Because the law is set to take effect in a few months, Oklahoma could face “imminent, unrecoverable” compliance expenses and risk of liability in private lawsuits.
• The rule ignores Supreme Court precedent holding that Title IX prohibits sexual harassment that is “so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Instead, students and staff would be subject to investigations if they failed to use a transgender student’s preferred pronouns, in violation of the First Amendment.
• The rule doesn’t have objective standards when it comes to identifying someone as transgender. It “broadly encompasses those that only temporarily or intermittently identify as transgender.” It quotes the DSM-5, which includes “individuals who transiently” identify a certain way in the definition of “transgender.”
• The rule will affect all schools and other recipients of federal funds with “far-reaching social and economic impact” without the involvement of Congress as a law-making authority.
• It conflicts with Oklahoma law providing that an employee or public school student “shall not be required, as a condition of employment, enrollment, or participation in any program, to refer to another person using that person’s preferred title or pronouns if the personal title or pronouns do not correspond to that person’s sex.”
• If a school or university loses federal funding due to a violation of the new changes, it will have detrimental consequences for students and staff.
• Girls and boys will experience “violations of their bodily privacy” by students of a different sex, which ignores psychological and safety concerns. 
• Scholarships for women will likely decrease, reducing educational opportunities for women.
• Biologically female athletes will face unfair competition and be exposed to a higher risk of injury.

This is not a complete summary of every argument from Drummond’s filing. The filing is available in full here.

Drummond asks the court to delay the effective date of the rule changes and stop the administration and its agency from enforcing them; deem the changes to be unlawful, arbitrary and capricious, and that Oklahoma may continue to receive Title IX funding; vacate the changes; and permanently prevent the administration from withholding Title IX funds for violating the changes.

The filing from OSDE often uses similar arguments to Drummond’s. In OSDE’s filing, it argues:

• Schools will need to be “impossibly vigilant in policing interactions” among students, parents and faculty.
• The rule changes require the ignorance of biological sex differences.
• The changes rely on a Supreme Court ruling about Title VII, not Title IX.
• The changes rescind Trump-era “safeguards” that protected the due process rights of those accused of sexual harassment or assault.
• The U.S. Department of Education used arbitrary and capricious decision-making because it does not define “gender identity” or “sexual orientation.”
• The law allows single-sex programs and facilities but requires them to be accessible to members of the opposite sex, only for those individuals who “claim a transgender identity.” The effect of this would be discrimination based on gender identity.
• The rule ignores Supreme Court precedent holding that Title IX prohibits sexual harassment that is “so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Instead, students and staff would be subject to investigations if they failed to use a transgender student’s preferred pronouns, in violation of the First Amendment.
• The rule doesn’t have objective standards when it comes to identifying someone as transgender. It “broadly encompasses those that only temporarily or intermittently identify as transgender.” It quotes the DSM-5, which includes “individuals who transiently” identify one way in the definition of “transgender.” “This places recipients in an untenable, if not impossible, position … How to determine the true intentions or true identifications of an individual and how to respond to a given set of circumstances.”
• The changes put students at unnecessary risk in instances in which “the true intent is to merely gain access to a female bathroom, locker room or other facility for predatory purposes.”
• The changes exceed the Department of Education’s statutory authority and compel schools to violate the First Amendment, lest they risk losing crucial federal funding.

This is not a complete summary of every argument from OSDE’s filing. The filing is available in full here.

OSDE asks the court to postpone the effective date of the changes; hold that the rule is unlawful and should be vacated; hold that the changes are contrary to Title IX and exceed the U.S. Department of Education’s authority; hold that the changes are arbitrary and capricious in wording, enforcement and in the process of creation; and award temporary and permanent injunctive relief that prohibits the Department from enforcing the changes.