Judges temporarily block Biden Title IX regulation restricting more speech and adding ‘gender identity’ to Title IX

Two federal judges have now temporarily blocked a Biden administration regulation issued under the Title IX statute, concluding that the Biden administration likely exceeded its powers and twisted the meaning of federal law.

In the first such ruling, issued on June 13, The College Fix reports that “President Biden’s Education Department misapplied the law and overstepped its authority when it announced that Title IX will now include gender identity, a federal judge stated in granting a preliminary injunction against the rule in four states.” The judge also ruled that the Education Department likely violated the First Amendment by defining speech as illegal harassment in violation of Title IX, when it does not actually constitute sexual harassment under the Supreme Court’s decision in Davis v. Monroe County Board of Education because it is not severe and pervasive.

The ruling was by Judge Terry Doughty, who hears cases filed in federal court in Monroe, Louisiana. His ruling blocks enforcement of the Biden Title IX regulation in four states that challenged it — Louisiana, Mississippi, Montana, and Idaho. Those states, along with various parish boards of education in Louisiana, challenged the regulation in Judge Doughty’s district court.

“This injunction prevents the new rules from going into effect pending further review by the district court,” says Liz Murrill, Louisiana’s attorney general. “This a victory for women and girls.”

In April 2024, the Biden administration issued an incredibly long regulation under the Title IX statute, which bans discrimination “on the basis of sex,” adding gender identity to the half-century-old law. The Education Department document containing the regulation is more than 1500 typewritten pages long. The changes dictated by the regulation would allow female-identifying biological males into women’s locker rooms and bathrooms and require others to address them with their preferred pronouns, even though a federal appeals court in Cincinnati ruled in 2021 that the First Amendment likely allows people to avoid using the pronouns preferred by transgender people.

The judge said that aspect of the regulation conflicts with the purpose of the Title IX statute. “The text of Title IX confirms that Title IX was intended to prevent biological women from being discriminated against in education in favor of biological men,” Judge Doughty wrote. “Title IX lists several exemptions which use the language ‘one sex’ or ‘both sexes’ showing that the statute was referring to biological men and biological women, not gender identity, sexual orientation, sex stereotypes, or sex characteristics.”

Doughty lamented that the Biden rule “failed to include any requirements for changing one’s gender identity and did not include any guidance for addressing ‘non-binary’ students or students with other gender identities.”

“A ‘gender fluid’ person could possibly change gender identities every day or several times per day. The Final Rule prohibits recipients from enacting common-sense rules to make sure the person who changed gender identities is sincere. Allowing a student to announce what gender they are, without requiring any supporting documentation, is arbitrary and capricious,” said Judge Doughty.

Doughty criticized the regulation because it “failed to consider that biological females and biological males that identify as females have different body parts. Nearly every civilization recognizes a norm against exposing one’s unclothed body to the opposite sex.”

The judge wrote:

Title IX was enacted for the protection of the discrimination of biological females. However, the Final Rule may likely cause biological females more discrimination than they had before Title IX was enacted. Importantly, Defendants did not consider the effect the Final Rule would have on biological females by requiring them to share their bathrooms and locker rooms with biological males. The Final Rule only focuses on the “effect on the student who changes their gender identity” and fails to address the effect on the other students (“cisgender students”). These cisgender females must use the bathroom, undress, and shower in the presence of persons who may identify as females but still have male biological parts. Many of these students are minors. The DOE made no attempt to determine the effect on students having students who are biologically the opposite sex in their locker rooms and bathrooms. Instead, the DOE declared in the Final Rule, with no explanation, that transgender students do not pose a safety risk for cisgender students.

The Biden regulation, the judge said, “demonstrates the abuse of power by executive federal agencies in the rulemaking process. The separation of powers and system of checks and balances exist in this country for a reason.”

Doughty “is the first to weigh in on” the multiple legal challenges” to the Biden regulation, reported Inside Higher Ed. “He wrote that the Education Department didn’t have the authority to enact the changes. The Biden administration can appeal the order to the U.S. Court of Appeals for the Fifth Circuit—a notoriously conservative panel that has blocked a number of federal rule changes.”

On June 17, another judge issued a temporary injunction that blocked Biden Title IX regulation revising the statute’s meaning. This ruling came from the Chief Judge of the Eastern District of Kentucky, Danny Reeves. His ruling likewise objected to Title IX changes that would effectively require females to share locker rooms and restrooms with males who claim to be the opposite sex. The Biden regulation would also effectively require schools to let males compete against females.

Judge Reeves’ injunction temporarily prevents the Department of Education from enforcing the new regulation in six additional states.

“This prior injunction covers the states of Louisiana, Mississippi, Montana, and Idaho,” explains Alliance Defending Freedom in a press release. “And this new injunction from the Kentucky district court covers the states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.”

“There are two sexes: male and female,” Judge Reeves wrote toward the beginning of his ruling.

The challengers in the case before him included the Christian Educators Association International and a female high school student suing under the initials “A.C.” She objects to the presence in her locker room of another high-school student, described as “B.P.J.”, who is biologically male but presents himself as a female. “B.P.J. was permitted to use the girls’ locker room to change clothes, which prompted A.C. to change clothes elsewhere, as A.C. feels uncomfortable dressing and undressing in the presence of biological males and does not want to see biological males undressing,” Judge Reeves explained in his ruling. “Ignoring fundamental biological truths between the two sexes deprives women and girls of meaningful access to educational facilities.”

Despite their different biological sex, “A.C.” and “B.P.J.” could end up competing on the same team next year, if Biden’s Title IX revisions are allowed to go into effect. ADF, which represented the challengers, submitted evidence showing B.P.J. “has finished ahead of almost 300 female competitors in three years of competition on the girls’ team.”

Judge Reeves also took issue with the Biden administration’s mandated use of transgender students’ preferred pronouns, which require students and staff to refer to transgender students by a different sex than their biological sex, as a menace to free speech.

Alliance Defending Freedom praised Judge Reeves’ ruling, “The Biden administration’s radical redefinition of ‘sex’ will upend the equal opportunities that women and girls have enjoyed for 50 years under Title IX and will threaten their safety and privacy at every level. The court was right to halt the administration’s illegal efforts to rewrite Title IX while this critical lawsuit continues. Our female athlete client has already suffered the humiliation and indignity of being harassed by a male student in the locker room and on her sports team. No one else should have to go through that. We are pleased the court ruled to uphold safety and privacy while this lawsuit continues.”

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By GIL