The Biden-Harris administration’s controversial efforts to force schools to admit men into girls’ school changing areas, showers, and overnight accommodations will have no effect in the majority of U.S. states, thanks to numerous rulings made primarily by Republican-appointed judges. By the end of litigation, students in as many as 45 states may be protected from the government’s attempts to shepherd through sweeping, top-down transgender regulations under the guise of historic civil rights legislation.
Officials in Biden’s Department of Education issued a controversial federal regulation on April 29 reinterpreting Title IX’s prohibition of discrimination based on “sex” as though it applied to men who identify as female, as well as those who identify as homosexual. For practical purposes, the new guidelines would assert that the landmark 1972 civil rights act, intended to protect women and girls from discrimination at school, forces girls to change in front of males against their will. They would also mandate the use of a trans-identifying person’s “preferred pronouns” in a school setting. The Biden-Harris administration rule would have applied to virtually every K-12 school, college, and university in America, but it went into effect on August 1 in only 24 states. All 26 states that sought a temporary halt to the Title IX rewrite had succeeded by Thursday morning.
A map of the exempted states resembles the 2016 Electoral College map.
Late Wednesday afternoon, the 11th U.S. Circuit Court of Appeals blocked the regulation from impacting students in Alabama, Georgia, Florida, and South Carolina.
“This is really great news,” said Meg Kilgannon, senior fellow for Education Studies at Family Research Council, minutes after the ruling. The ruling, which overturned a lower judge’s order allowing the Biden administration rule to take place, puts extreme gender ideology “back on defense.”
In a separate ruling on Wednesday, federal Judge Jodi W. Dishman of the District of Western Oklahoma, a Trump appointee, issued an injunction exempting students in the Sooner State from being subjected to transgender social engineering as the case made its way through the courts. All reasonable judges are likely to conclude that this rule inverts the intention of civil rights law, legislates by executive decree, and violates the Constitution, said Dishman. The “[f]inal [r]ule elevates gender identity and its accompanying protections above that of biological sex—i.e., women. Such a contradiction of Title IX’s text and an erosion of its purpose cannot be permitted absent congressional action.”
“Title IX’s unambiguous and clear text shows” that the state of Oklahoma “is substantially likely to succeed on the merits of its case” and prove its contention that the Biden administration “exceeded its statutory authority under Title IX by implementing a regulation that expands sex discrimination to include discrimination on the basis of gender identity,” wrote Dishman.
She also pointed out that the terms of the Biden administration’s Title IX rewritten regulation “violate the First Amendment” and Supreme Court precedent. In a previous ruling, justices ruled that a lawsuit can only establish student-on-student harassment if it proves the behavior is “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education.” The Biden administration changed this standard to “severe or pervasive,” noted Dishman.
“It is reasonable to assume that refusal to affirm someone’s gender identity would fall into this category,” ruled Dishman. That could include the use of a “deadname” (use of the person’s birth name) and correctly using pronouns that reflect the person’s biology.
The Biden administration’s gender-redefining regulation also stepped outside its legal authority, Dishman ruled, because it “largely expands the [d]epartment’s reach outside the classroom and off campus,” explicitly threatening to police free speech activity on “social media platforms.”
Oklahoma Attorney General Gentner Drummond (R) praised Judge Dishman’s “well-reasoned ruling.” Its clear declaration “helps to protect both female and male students from invasions of privacy and unnecessary harm,” said Drummond. “Our students deserve the protections that have long been provided by Title IX.”
Yet the most consequential of the cases came from three independent, grassroots groups: Moms for Liberty, Young America’s Foundation, and Female Athletes United. On July 2, U.S. District Judge John Broomes, a Trump appointee, ruled in favor of those groups — and Kansas Attorney General Kris Kobach (R) — in granting an injunction against the rules that applies to Alaska, Kansas, Utah, and Wyoming. In part, Judge Broomes premised his decision on the importance of female privacy, citing the words of an Oklahoma middle school student who said boys had sometimes abused the transgender rule to gawk at female students, “because they knew they could get away with it.”
But the injunction applies to any school nationwide where a student has a parent who belongs to Moms for Liberty. The group submitted a 63-page list of more than 2,000 schools in 45 states.
“Parents across the country owe a debt of gratitude to Moms for Liberty for filing this lawsuit,” Kilgannon told The Washington Stand earlier this week.
These are but the latest in a series of court cases once again ruling that the Biden-Harris administration’s strategy of ruling through executive orders and regulations is unlikely to meet constitutional muster.
On July 11, U.S. District Judge Matthew Kacsmaryk halted the Biden administration’s attempt to override the will of parents in Texas. Judge Kacsmaryk, a Trump appointee who formerly served as deputy general counsel at the pro-life First Liberty Institute, has also sided with pro-life doctors who said the FDA illegally approved the abortion pill mifepristone in 2000 and ruled against taxpayer-funded Title X providers whose federally funded guidelines instruct doctors to talk about sex with minors behind their parents’ backs.
On June 13, U.S. District Judge Terry Doughty issued a preliminary injunction shielding the states of Idaho, Louisiana, Mississippi, and Montana from Biden’s gender-distorting regulation, which the judge called an “abuse of power” and a “threat to democracy.” Doughty, a Trump appointee, found it “difficult” to believe the Biden-Harris administration could “sincerely argue” that at the time legislators enacted Title IX in 1972, “‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”
“Enacting the changes in the [f]inal [r]ule would subvert the original purpose of Title IX,” wrote Doughty.
On June 17, U.S. District Judge Danny Reeves, a George W. Bush appointee, issued an injunction against the Title IX regulation, thus protecting students in Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia.
These legal decisions come in the midst of an eight-year-long campaign by federal bureaucrats to codify extreme gender ideology into federal regulations. The Obama-Biden administration advanced a similar educational policy in May 2016, threatening to withhold federal funding from schools that did not redefine sex to include “gender identity.” President Donald Trump rescinded the legal memorandum early in his tenure. The Biden-Harris administration now seeks to reimplement the policy via Title IX guidelines.
The latest regulations cite the legal reasoning of the Supreme Court’s 2020 Bostock v. Clayton County case, which contended that the term “sex” in Title VII includes gender identity and sexual preference. Yet the opinion, written by Justice Neil Gorsuch, explicitly stated that, in its narrow application to employment law, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
Most of the judges siding with women’s privacy and legal integrity have been appointed by Republican judges — but not all. U.S. District Judge Rodney Sippel, a Clinton appointee, issued a preliminary injunction on July 24 against the Title IX rules’ attempted revision of gender norms for students in Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota.
Conversely, on Tuesday, U.S. District Judge Annemarie Axon, a Trump appointee, refused to block the Title IX rules from taking effect in Alabama, Florida, Georgia and South Carolina. Critics described Axon’s 122-page opinion as “creative in its effort to save this rule and to prevent this being enforced,” Kilgannon told “Washington Watch with Tony Perkins” on Wednesday. “We’ve seen a lot of creative legal strategies in this regard.”
“Kind of like the creative definitions of sex,” replied Perkins.
Although the latest legal rulings secure the rights of a significant swath of students nationwide, they do not apply to states that did not seek legal exemption from the order, nor to school districts in those states that have adopted their own policies enabling males to access girls’ restrooms, showers, and other intimate areas.
“This is something that parents really need to be vigilant about,” noted Kilgannon, “monitoring your school and making sure that this isn’t happening where you live.” She encouraged parents to learn about their local school district’s policy, if necessary by contacting the school’s Title IX coordinator.
Despite being shut-out at court, the Biden-Harris administration aims to continue the battle, on the airwaves and in the courtroom. Secretary of Education Miguel Cardona claimed the rulings would subject students who identify as the opposite sex to “discrimination or bullying simply because of who they are.” Protecting female spaces from male incursion is “not what this country stands for,” Cardona alleged.
The Department of Education asked judges to let the rest of the Title IX rules — which critics say deny due process rights to men accused of sexual harassment — take effect. “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 August 1,” said a Biden-Harris administration official.
On Thursday, the Education Department’s Office for Civil Rights also threatened to sue anyone in any state not covered by one of the lawsuits.
“This is going to end up before the Supreme Court,” forecast Family Research Council President Tony Perkins on Wednesday. “I just don’t know if it’s going to happen in time before school starts. The battle for sanity continues.”
Ben Johnson is senior reporter and editor at The Washington Stand.
