On Tuesday, a federal judge in Kansas ruled that Utah, along with Alaska, Wyoming and Kansas, should not implement the Biden administration’s revised guidance on Title IX. This is the fourth consecutive ruling by federal judges that the guidance steps so far beyond the power of the executive branch as to invalidate it.
To date, these rulings not only cover Utah, Alaska, Wyoming and Kansas, but also Kentucky, Indiana, Ohio, Tennessee, Virginia, West Virginia, Idaho, Louisiana, Mississippi, Montana and Texas. Four more suits on the same issue are still in process.
The problem with the Biden administration’s revision, referred to as “the Final Rule” in court documents, is that the guidance redefines the word “sex” to include gender identity. Indeed, when gender identity discrimination is alleged, that then trumps arguments based on physical sex.
So, for example, students who have gone through male puberty and now assert they are women would, under the Biden administration’s reinterpretation, be eligible to compete in women’s sports in high school and college. And this would be judged a more important matter than the right of female athletes to fair competition, and the right of female athletes not to share restrooms and locker rooms with biological males.
The ruling in Kansas by U.S. District Judge John Broomes is straightforward in its analysis. The defendant — the U.S. Department of Education — admitted that in 1972, when the statute Title IX was passed, that “sex” meant biological sex. However, the agency argued that on the basis of the Supreme Court’s ruling in the Bostock case, which addressed Title VII employment issues, that sex included gender identity.
Broomes notes that the Bostock decision explicitly stated that the ruling was not addressing “bathrooms, locker rooms, or anything else of the kind.” Indeed, since Title IX itself allows for separate living facilities on the basis of sex, the Biden administration’s reinterpretation would make Title IX, as originally written, meaningless.
Broomes notes, “This instruction is the authoritative expression of Congress’s view that separating the two sexes ‘where personal privacy must be preserved’ is not the type of discrimination prohibited by the statute.”
Furthermore, argues Broomes, since restrooms, showers and changing areas are part and parcel of all living facilities, then separation by sex in such places is perfectly legal under Title IX.
Broomes also notes that the definition of sex is a “major question.” This is court-speak for the recent set of rulings by the Supreme Court mandating that “major questions” cannot be decided by executive agencies, but rather by the U.S. Congress. These rulings constitute a significant rebalancing of the powers of the executive branch. Since Congress did not ask the Department of Education to reinterpret Title IX, the department is not justified in doing so, according to Broomes.
The plaintiffs also argued that the First Amendment rights of students would be curtailed under the Final Rule, and Broomes concurred. Any student who opined that sex meant biological sex, or that sex was immutable and unchangeable, or that restrooms and locker rooms should be single-sex, could be accused of sexual harassment or hostile environment harassment on the basis of the Biden administration’s reinterpretation.
Broomes also found the new guidance was arbitrary and capricious, and the primary reason for this finding was that the Department of Education conducted no research on the harms to female students that could result from it.
Despite copious evidence of harm produced by the plaintiffs in this case and introduced in the other federal district cases, the department said “there was a lack of evidence” of such harm. Broomes concluded that “it is clear that the (Education Department) failed to consider several important aspects of the problems raised by the Final Rule,” and thus acted capriciously.
While Broomes did not believe he could issue a nationwide injunction against implementation of the Final Rule, he did the next best thing.
While the four states were the primary plaintiffs, other plaintiffs included nongovernmental organizations whose members have children in schools around the country. In finding for the plaintiffs, Broomes in essence decreed that any school enrolling students who are or whose parents are members of these organizations are found to be under this injunction.
These organizations include Female Athletes United, Young America’s Foundation and Moms for Liberty. If states and schools under this injunction do not implement the Final Rule, the Department of Education cannot apply any consequences, such as withholding of federal funds, according to Broomes.
Broomes ends by asking the Department of Education whether it really wants this fight, since it has been losing so badly in courts all over the nation. “That leaves it to Defendants, in the first instance, to determine whether patchwork enforcement of the Final Rule is feasible and worth the risk of running afoul of the court’s injunction, thereby exposing Defendants and their representatives to sanctions for contempt.”
That’s a very good question, and there is a rational answer to it. Is the Biden administration’s Department of Education willing to finally face reality?
Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.