Judge blocks Biden administration’s inclusion of ‘gender identity’ in Title IX regulations

U.S. Department of Education building in Washington, D.C. / Credit: Farragutful, CC BY-SA 4.0, via Wikimedia Commons

Washington, D.C. Newsroom, Jul 3, 2024 / 17:38 pm (CNA).

A third judge has temporarily halted the U.S. Department of Education from enforcing a regulation that would broadly prohibit discrimination based on a person’s self-asserted “gender identity.”

United States District Court Judge John W. Broomes issued a ruling that blocks enforcement of the regulation in every school and college in Kansas, Alaska, Utah, and Wyoming. The ruling also prevents the government from enforcing the regulation in every school and college that is attended by members of Female Athletes United and Young America’s Foundation, along with schools attended by children whose parents are members of Moms for Liberty — which are all listed as plaintiffs in the lawsuit.

The U.S. Department of Education had already been blocked from enforcing the regulation in 10 other states based on two separate rulings: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.

Republican attorneys general in 12 other states have also filed lawsuits seeking to block the department from enforcing the rules in their states.

The Biden administration regulation, which is set to go into effect on Aug. 1, would reinterpret Title IX’s prohibition on sex discrimination to include a new prohibition on discriminating against a person’s “gender identity.” The rule would prohibit education institutions that receive federal funds from enforcing any policy or practice that “prevents a person from participating in an education program or activity consistent with their gender identity,” even when the self-purported gender identity is different from the person’s biological sex.

Although the regulation itself does not specify how the rule would be enforced in practice, the attorneys general who sued the Department of Education have said the rules would force schools and colleges to allow biological men who identify as women to access sports competitions, locker rooms, bathrooms, and dormitories that are exclusive to women — even when states have enacted laws to prevent this. 

“The Biden administration’s radical redefinition of sex won’t just rewire our educational system,” Rachel Rouleau, who serves as legal counsel at Alliance Defending Freedom — the group that is representing Female Athletes United — said in a statement. 

“[The regulation] means girls will be forced to undress in locker rooms and share hotel rooms with boys on overnight school trips, teachers and students will have to refrain from speaking truthfully about biological sex, and girls will lose their right to fair competition in sports,” Rouleau said. “The court was right to halt the administration’s illegal efforts to rewrite Title IX while this critical lawsuit continues.”

When Congress first added Title IX’s sex discrimination provisions into federal law in the 1970s, the goal was to give girls and women equal access in education. The law prohibits sex-based discrimination but makes no mention of gender identity.

In his ruling, Broomes found no justification for the Department of Education interpreting Title IX’s sex discrimination provisions to include a prohibition on “gender identity” discrimination. Rather, he ruled that “the court finds that the unambiguous plain language of the statutory provisions and the legislative history make clear that the term ‘sex’ means the traditional concept of biological sex in which there are only two sexes, male and female.”

A spokesperson for the Department of Education told CNA that “we are reviewing this recent ruling that impacted an additional four states” and defended its Title IX interpretation.

“The department crafted the final Title IX regulations following a rigorous process to realize the nondiscrimination mandate of Title IX,” the spokesperson said. “The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student. While the appeals of previous rulings are pending, we have asked the trial courts to allow the unchallenged provisions — the bulk of the final rule — to take effect in these states as scheduled, on Aug. 1.”

The rulings only temporarily halt the Department of Education’s enforcement of the regulation and only prevent enforcement against the individuals and entities who filed the lawsuits — including the entirety of states whose attorneys general filed lawsuits. The temporary pause puts the regulation on hold until the courts make a final decision on the legality of the Biden administration’s interpretation of Title IX.