Biden Title IX Rule Forcing Gender Ideology on Government Schools Now Blocked in 14 States
A federal judge on Tuesday ruled against the Biden administration’s attempt to force an expanded definition of “sex” in federal education policy that seeks to include “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Judge John Broomes of U.S District Court for the District of Kansas, a Donald Trump appointee, delivered the third decision against the Biden administration’s rule, one that now brings the number of states in which the rule cannot be enforced up to 14: Indiana, Kentucky, Idaho, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia, and, now, also Kansas, Alaska, Utah, and Wyoming.
"The Department of Education's reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress' goals of protecting biological women in education," Broomes wrote in the order.
"We have had many wins in court, but to me, this is the biggest one yet,” Kansas Attorney General Kris Kobach, who argued the case in June, said in a statement. “It protects girls and women across the country from having their privacy rights and safety violated in bathrooms and locker rooms and from having their freedom of speech violated if they say there are only two sexes."
The attorney general’s office explained as well that, since the injunction “covers schools throughout the entire country via the plaintiff organizations,” and that these private organizations include members from all 50 states, the ruling “will have a sweeping effect.”
The Biden administration rule allows gender identity to surpass biological sex by “recogniz[ing] that preventing a person from participating in a recipient’s education program or activity consistent with their gender identity subjects that person to more than de minimis harm.”
The new regulations are effective August 1. In April, the Biden education department released an unofficial version of its final rules, along with a fact sheet and a summary of the major provisions of the rules.
The regulations are founded upon the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, a case dealing with employment discrimination.
In June 2021, the Biden education department declared it was “confirming” that Title IX “protects students from discrimination based on sexual orientation and gender identity,” in keeping with its “interpretation” of that decision, in which the Court ruled that “on the basis of sex” refers also to sexual preference and gender identity.
The Court held: “An employer who fires an individual merely for being gay or transgender violates Title VII.”
“[T]he Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex,” the Biden education department interpreted.
Nevertheless, after summarizing the administration’s position, Broomes was quick to shoot down that apparently contrived interpretation:
Defendants do not make much effort to dispute that the term “sex” in Title IX means biological sex. Rather, Defendants argue that this makes no difference because discrimination on the basis of gender identity is discrimination on the basis of biological sex … Therefore, the final regulation is not contrary to Title IX. In support of their position, Defendants rely on Bostock and other cases citing Bostock in support … The “only question” in Bostock, however, was “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual's sex’” in violation of Title VII … First and foremost, Bostock involved a different statute, Title VII, which prohibits sex discrimination in employment. Although the statutes are similar in that they both prohibit sex discrimination, there are notable differences. Significantly, Title IX includes several carve outs to the prohibition on sex discrimination that are not present in Title VII … Further, Title IX is about schools, and “the school is not the workplace” … The Supreme Court also explicitly declined to address any other laws and the meaning of their terms or whether its holding would be applicable to “bathrooms, locker rooms, or anything else of the kind.”
“If Bostock expressly disavowed its application to bathrooms and showers under Title VII, it certainly has no application to bathrooms and showers under Title IX,” Broomes wrote, adding:
Moreover, Bostock arose in a situation where the plaintiffs were employees of private businesses who were fired because of decisions they made as consenting adults regarding their private lives, and those decisions caused no harm to their employers, coworkers, or anyone else for that matter. In that sense, Bostock can fairly be described as a live-and-let-live decision where employers were prohibited from interfering with their employees’ personal lifestyle choices when those choices had no bearing on the employees’ abilities to perform their jobs. By contrast, this case involves the government’s decision to interpose itself into the field of education, an area traditionally left to state and local governments and the schools, themselves, and in which the government’s edicts result in the subordination of the interests of non-transgender students (many of whom are minors) in free speech, privacy, and safety to the interests of transgender students in expressing and conducting themselves in accordance with their individual notions of gender identity.
“These differences, among others, demonstrate why the reasoning from Bostock does not automatically transfer to the Title IX context, nor does Bostock compel the changes to the Title IX regulations encompassed by the Final Rule,” the judge asserted.