Appeals court rejects Biden administration request to enforce ‘gender identity’ Title IX rules

The U.S. Department of Education sign hangs over the entrance to the federal building housing the agency’s headquarters on Feb. 9, 2024, in Washington, D.C. / Credit: J. David Ake/Getty Images

Washington, D.C. Newsroom, Jul 19, 2024 / 15:22 pm (CNA).

An appellate court rejected a request from President Joe Biden’s administration to enforce a regulation in four states that would broadly prohibit discrimination based on a person’s self-asserted “gender identity.”

The United States Court of Appeals for the 5th Circuit upheld a lower court ruling that prevents the U.S. Department of Education from enforcing any part of the “gender identity” provisions in the Title IX rule for public schools and colleges in Montana, Idaho, Louisiana, and Mississippi. 

The lower court’s order will remain in place as all five states continue their lawsuit, which challenges the legality of the regulation.

Courts have blocked the Department of Education from enforcing the regulation in 15 states altogether, while attorneys general in about a dozen other states have also filed lawsuits. The regulation will go into effect on Aug. 1 in jurisdictions where courts have not blocked its enforcement.

The regulation, which the administration promulgated in April, reinterprets Title IX’s prohibition on “sex discrimination” to include a prohibition on “gender identity” discrimination. 

Some lawyers and Republican attorneys general have warned that the rule would jeopardize state laws that restrict girls’ and women’s locker rooms, bathrooms, dormitories, and athletic competitions to only girls and women and could force states to allow access to men who identify as women.

“The Biden administration’s radical redefinition of sex turns back the clock on equal opportunity for women, undermines fairness, and threatens student safety and privacy,” Alliance Defending Freedom Senior Counsel Natalie Thompson, who is representing the Louisiana-based Rapides Parish School Board in the lawsuit, said in a statement. 

“The 5th Circuit now joins the 6th Circuit in holding back the Biden administration’s illegal efforts to rewrite Title IX while this critical lawsuit continues,” she added. “The administration continues to ignore biological reality, science, and common sense.” 

“The Rapides Parish School Board and schools and teachers across the country are right to stand against the administration’s adoption of extreme gender ideology, which would have devastating consequences for students, teachers, administrators, and families.”

After the lower court blocked the Department of Education from enforcing any part of the rule, the department filed an appeal that requested permission to partially enforce the rule while the litigation continues. The department claimed that the prohibition on enforcement was too broad and requested permission to enforce reporting and record-keeping rules, grievance procedures, and a variety of provisions related to “gender identity” discrimination included in the new rule.

In the ruling, the judges wrote that “the answer is no,” adding that the provisions the department wants to enforce are “complex, lengthy, and burdensome” and that the department “has given us little basis to assess the likelihood of success” in the case.

“The implementation and compliance costs would double if the partially implemented rule differs from a final judgment,” the judges wrote. “They would first have to amend their policies, alter their procedures, and train their employees to comply with a partial version of the rule pending appeal, and then they would have to do it all over again to comply with the rule as it stands at the conclusion of the litigation.”

The prohibition on sex discrimination written into the law itself makes no mention of “gender identity.” When Congress added the Title IX sex discrimination provisions into federal law in the 1970s, the intent was to provide girls and women with equal access to education and did not have any reference to transgenderism.

In spite of this, the Biden administration argues that interpreting “sex discrimination” to include “gender identity” discrimination is within the scope of the Department of Education’s regulatory authority. The states opposed to the rule argue that this interpretation is not consistent with the actual text of the law and falls outside of the department’s regulatory authority.