“Huge win for girls and women everywhere!” exulted Riley Gaines. “Common sense is slowly returning,” she continued after news that a federal judge shot down Joe Biden’s attempt to promote biological males competing in women’s sports.
That may overstate the impact at the moment, but hopefully not the trend. For now, though, Biden’s last-minute poison pill of federal regulation has been dissolved:
“It is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female,” Reeves wrote. “Expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head.”
The ruling comes after U.S. District Court Judge Terry Doughty issued a preliminary injunction in a related case in June. Doughty, based in Louisiana, argued the Biden administration’s changes violated the separation of powers and were inconsistent with Title IX’s original intent. He stated that the law “was written and intended to protect biological women from discrimination.”
Doughty also rejected the administration’s reliance on the Supreme Court’s 2020 Bostock v. Clayton County decision, which expanded sex discrimination protections to include transgender identity in employment law under Title VII. He noted that Bostock does not extend to Title IX, and federal courts remain divided on whether it applies to education law.
Tennesse AG Jonathan Skrmetti brought the lawsuit naming Education Secretary Miguel Cardon as respondent. He pointed out on Twitter that the judge has suspended this change nationwide, halting the erasure of access to women for sports competition from going forward anywhere:
Another massive win for TN and the country!
This morning, a federal court ruled in our favor and vacated the Biden admin’s radical new Title IX rule nationwide.
The court’s order is resounding victory for the protection of girls’ privacy in locker rooms and showers, and for the… pic.twitter.com/XsnzSEQvAU
— TN Attorney General (@AGTennessee) January 9, 2025
This is good news, but it’s still just in one district court. Although the injunction applies nationwide for now, the decision will get appealed to the Sixth Circuit soon enough. Judge Reeves’ decision will lack precedential value unless upheld by that court for that circuit, and it won’t be precedential outside the Sixth Circuit unless the Supreme Court upholds it, assuming it gets that far.
And it probably won’t, for the obvious reason that Cardona and Biden will be gone in eleven days. Donald Trump has made clear that he will reverse any and all such rule changes that attempt to force schools to allow biological males into spaces set aside for females, including competitive sports spaces. That may be an unfortunate development in the sense that this ruling won’t achieve any sort of precedential value, because this fight will return otherwise.
That’s too bad, because Reeves scores some excellent points on major-questions grounds and, well … pure reality. In the first place, Cardona and Biden had no authority to expand “on the basis of sex” in Title IX to any other meaning other than its clear reliance on biology:
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. See 20 U.S.C. § 1682. 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.
Congress passed Title IX expressly to address the lack of equal resources available for women and girls in education based on biological identity. That’s what “on the basis of sex” meant at the time of passage, and that’s what it means to this day. Congress could act to amend the law to change “sex” to “gender,” but Congress has not done so. The Department of Education cannot just redefine “sex” to interfere with Congress’ statutory effort to address an imbalance on the basis of biological sex, especially when that effort undercuts the entire point of the statute by forcing schools to open those spaces to males, as Reeves observes:
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. 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. …
The Final Rule would leave 20 U.S.C. §§ 1681(a)(1)-(9) and 1686 intact while adding regulations that mandate access to showers, locker rooms, and sexual education classes, among others, consistent with an individual’s gender identity. See 34 C.F.R. §§ 106.31, 106.33. But this approach simply 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.
Much of this has been covered conceptually by Loper Bright and the end of the Chevron doctrine, not to mention the precedents related to the major-questions doctrine. However, Reeves hits a home run on how the Biden rule would have violated the First Amendment rights of schools, teachers, and students by enforcing pronoun-usage rules:
The Final Rule also suffers significant constitutional infirmities. The Court remains persuaded that the Final Rule offends the First Amendment for the reasons explained in its prior Memorandum Opinions and Orders. [See Record Nos. 100, 117.] To recap briefly, the Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity. While the Department insists that this is not necessarily the case (see Record No. 134, p. 39), the new subjective harassment standard that need only “limit” participation in an educational program or activity, quite clearly compels this result. See 89 Fed. Reg. 33516 (stating that “whether verbal conduct constitutes sexbased harassment is necessarily fact-specific” and acknowledging that “a stray remark, such as a misuse of language,” would not constitute harassment) (emphasis added).
As the Sixth Circuit recognized in Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021), “[p]ronouns can and do convey a powerful message implicating a sensitive topic of public concern.” The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the Final Rule. Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner.
This was not an accident of this new regulation, either. Biden and Cardona wanted to force schools to punish people who refused to adopt the “preferred pronouns” of a small group of people, with the force of federal enforcement in that censorship. That may have been one of the highest priorities for the Biden administration in promulgating this unconstitutional rule. Reeves offers other ways in which this violates the Constitution, mainly technical (his Spending Clause argument is interesting), but his argument on this point is the highlight of this opinion.
We can all exult that Biden’s abomination has been shelved, for now. But until we get firm precedent against this nonsense, we will eventually come back around to the same effort to silence people who object to the erasure of women.
