(Brendan Carey, The Center Square) A federal court in Kentucky ruled Thursday that the Biden administration’s rulemaking expanding Title IX to include gender identity is “unlawful.”
The judgment from the United States District Court from the Eastern District of Kentucky sided with Kentucky, Indiana, Tennessee, West Virginia and private organizations and individuals. Critics of the rule lauded the court’s decisions.
Chief Judge Danny C. Reeves wrote in Thursday’s order that the administration’s final rule overstepped its congressionally given boundaries.
“Congress gave the Department authority to issue rules, regulations, and orders to effectuate Title IX’s prohibition on sex discrimination consistent with the objectives of the statute,” Reeves wrote. “However, the Department exceeded that authority in issuing the Final Rule and the text of Title IX shows why.
“Put simply, there is nothing in the text or statutory design of Title IX to suggest that discrimination ‘on the basis of sex’ means anything other than it has since Title IX’s inception–that recipients of federal funds under Title IX may not treat a person worse than another similarly-situated individual on the basis of the person’s sex, i.e., male or female,” Reeves wrote.
“As this Court and others have explained, expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head,” Reeves wrote.
“While Title IX sought to level the playing field between men and women, it is rife with exceptions that allow males and females to be separated based on the enduring physical differences between the sexes,” Reeves said.
Reeves said that the final rule’s approach to locker rooms “does not make sense.”
“Confirming the arbitrary nature of these new regulations, the Department has offered no rational explanation for the stark inconsistencies that will result if the Final Rule is allowed to go forward,” the judge wrote.
The court also said the rule violates the First Amendment because “the Final Rule’s definitions of sex discrimination and sex-based harassment … require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity.”
“The Final Rule also is vague and overbroad,” Reeves wrote. “As the Court explained previously, several of the terms used in this regulation are so vague that recipients of Title IX funds have no way of predicting what conduct will violate the law.”
The court also said the final rule violates the Spending Clause of the Constitution and is arbitrary and capricious.
“The Department does not provide a reasoned explanation for departing from its longstanding interpretation of Title IX,” Reeves wrote. “Although it relies primarily on Bostock, the Supreme Court was clear that the decision was limited to the context of Title VII and did not purport to address ‘bathrooms, locker rooms, or anything else of the kind.’”
The court struck down the entire ruling, rather than the portions challenged by litigation. In the order, Reeves concluded that “the entire Final Rule and corresponding regulations are invalid and must be set aside.”
Reeves said that other courts have indicated it is unlawful and “would simply ‘cause a return to the status quo’ that existed for more than 50 years prior to its effective date.” The judgment is appealable.
Critics of the Biden administration rule celebrated the order.
“Huge blow today for Biden’s wildly unconstitutional plan to hollow out Title IX protections and instead use federal law to enforce gender ideology in public schools and colleges across our nation,” said Kim Hermann, executive director of the Southeastern Legal Foundation.
“Freedom has won in the Court’s decision to grant summary judgment for the plaintiffs in this case and to throw out the Biden Title IX rules as ‘unlawful’—adding that it ‘offends the First Amendment,’” Hermann said.
Hermann also said it creates a precedent for the other cases, including one in which her firm is challenging the Biden administration’s rules. The rule’s implementation has remained piecemeal since legal challenges and court orders have halted its widespread implementation.
The Biden Department of Education attempted to expand the definition of sex discrimination to include gender identity and strengthen protections for pregnant students, citing the discrimination faced by LGBT students.
Critics have said that it would redefine women’s sports and put female students at risk.
The Biden administration recently withdrew its proposed rule that would have dictated how schools and institutions of higher learning would approach transgender athletes on single-sex sports teams.
