Third Federal Court Puts Preliminary Injunction on Biden’s Title IX Rule

Third Federal Court Puts Preliminary Injunction on Biden’s Title IX Rule

The United States District Court for the District of Kansas placed a preliminary injunction on President Joe Biden’s Title IX rewrite, known as the Final Rule.

“After review, 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,” proclaimed Judge John Broomes.

The court is the third court that has issued a preliminary injunction.

• Tennessee v. Cardona
• Louisiana v. Dept. of Education

That means the Final Rule cannot go into effect as the case State of Kansas v. U.S. Department of Education continues.

The injunction covers Kansas, Alaska, Utah, and Wyoming along with “every school across the country attended by plaintiff Katie Rowland, the members of Female Athletes United, the members of Young America’s Foundation, and the minor children of the members of Moms for Liberty.”

The plaintiffs asked for the injunction because they believe “they will prevail on all their claims.”

Broomes agreed, “finding that Plaintiffs have established standing with respect to their claims.”

Broomes wrote:

The Plaintiff States have laws pertaining to students’ privacy and separation of students by their biological sex. The Plaintiff States allege that the Final Rule interferes with their sovereign right to create and enforce their own laws, imposes administrative costs and burdens, and requires Plaintiff States to redesign or reconfigure their physical facilities. States have an interest in “the exercise of sovereign power over individuals and entities within the relevant jurisdiction—this involves the power to create and enforce a legal code, both civil and criminal.” Here, Plaintiffs contend that DoE seeks to regulate Title IX in a manner that is not compatible with their state laws.

A few of the laws that conflict with the rewrite:

• Kansas: § 72-6286 (a) requiring that overnight accommodations on school travel be separated by sex of the student.
• Alaska: § 14.18.040 requiring that schools provide showers, toilets, and training room facilities for both sexes for athletic or recreational purposes.
• Wyoming: § 21-25-102 separating athletic activities by sex.
• Utah HB 257: single-sex bathrooms and locker rooms.

Two Sexes

The plaintiffs hit the merits out of the ballpark since the court had to go by the definition of sex (and may I say still the only definition) when the government implemented Title IX: male or female.

Even the defendants agreed that, at that time, sex was defined as male or female.

Congress meant “the biological sex of both males and females:”

The legislative history also supports a finding that the term “sex” referred to biological sex. As discussed, one of the principal purposes of the statute was to root out discrimination against women in education. The legislative history shows that Congress was concerned about the unequal treatment between men and women for admissions opportunities, scholarships, and sports. The legislative history provided statistics on the number of women and men being included in various programs and activities.

Boom (emphasis mine): “The text of the statute also supports a finding that the term ‘sex’ meant biological sex and not gender identity or sexual orientation.”

Broomes reminded the defendants that Congress passed Title IX to protect females “from discrimination in education:”

The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education. The Final Rule would, among other things, require schools to subordinate the fears, concerns, and privacy interests of biological women to the desires of transgender biological men to shower, dress, and share restroom facilities with their female peers. Moreover, to expand sex discrimination to encompass “self-professed and potentially ever changing gender identity is inconsistent with Title IX’s sex-separation dictates.” Because of these significant differences between Title IX and Title VII, uniformly applying Bostock to Title IX is not appropriate and would contradict the purpose of Title IX. Although not briefed by the parties, the Tenth Circuit’s decision in Fowler does not compel a different decision for the same reasons. There, the question was whether purported discrimination based on transgender status was sexbased discrimination that implicated the Equal Protection clause. Here, the sex based categories of Title IX are explicit—and the question is what the text of Title IX requires as a result.

“The Final Rule’s interpretation of sex and discrimination are therefore contrary to the statute and historical context of Title IX,” stated Broomes. “The court finds that Plaintiffs are likely to succeed on their claim that the DoE exceed[s] its statutory authority in expanding the definition of sex discrimination in the Final Rule.”

Female Sports

How about female sports? The Biden administration claimed that the Final Rules did not affect sports.

Broomes said the court did not consider the female sports argument because “the proposed rule is not final and the Final Rule carves out an exception for the athletics regulation.”

Freedom of Speech

Broomes found the plaintiffs showed an injury for standing purposes by arguing that “new duties imposed under the Final Rule” were not required before, along with alleged injuries to state universities.

The schools face the loss of federal funding if they do not comply.

“The States must now investigate allegations of sex discrimination based on gender identity discrimination,” wrote Broomes. “The States must comply with the requirement of new policies in accordance with the Final Rule and hire Title IX coordinators to make sure the policies are carried out.”

Katie Rowland and the organizations also proved their standings in their declarations due to “their religious beliefs that there are two sexes, a person’s sex cannot be changed, and that they believe that they must use pronouns which align with a person’s biological sex.”

All of that is true…because science.

“Based on the affidavits submitted by the members of the Plaintiff Organizations, the court finds that those members have established standing to challenge the constitutionality of the Final Rule based on a potential chilling of their speech in violation of the First Amendment,” declared Broomes.

Broomes pointed out that “[C]hilled speech is different from the suppression of speech; it is self-imposed but nonetheless violates the First Amendment.”

The defendants didn’t help themselves when they could not answer a simple question about a student facing discrimination complaints:

Notably, during the hearing, the court asked the DoE’s counsel whether students could engage in a civil discourse regarding the issue of gender identity without being fearful of an accusation of sex-based harassment. Specifically, the court asked defense counsel if a student were to state that she believes that sex and gender are the same, they are immutable, and/or that a person’s gender identity cannot deviate from his or her biological sex, would that person be subjected to an actionable discrimination complaint under the Final Rule? Defense counsel could not definitively answer the question and continued to state that it would depend on the facts and specific circumstances. Counsel then stated that the complainant would also have to show that such speech limited or denied a person’s ability to participate in or benefit from the recipient’s education program or activity. What does it mean to limit a person’s ability to participate in an education program? Those terms are not defined in the Final Rule and, as discussed at the hearing, the term “program or activity” as defined by Title IX means all operations of a school. Therefore, this standard for actionable discrimination under the Final Rule could conceivably be met in any circumstance where a student simply complained that he could not concentrate in class due to another student’s statements on the topic of gender identity. This interpretation is supported by the Department’s statement that the student need not demonstrate a particular harm just “some impact on their ability to participate or benefit from the education program . . . .” Therefore, contrary to defense counsel’s argument that this language imposes some limit on the scope of a harassment claim, it does not; rather, it is an entirely subjective standard that is potentially met whenever the complainant alleges that the conduct or speech somehow impacts the complainant’s education. And there is no objective standard to measure whether the complainant was actually impacted because there is no need to demonstrate harm.

“There was not one lawyer in the courtroom, including the undersigned, who was able to offer any possible explanation of what a parent should tell their child about the limits of legal speech at their schools on the topic of gender identity or sexual orientation under the Final Rule,” concluded Broomes. “The result is that speech is chilled because what student wants to ‘run the risk of being accused of’ sex-based harassment and subjected to an investigation and potential discipline.”

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