Supreme Court Keeps Hold On Biden/Harris Title IX New Rules Giving Boys Access To Girls Sports and Locker Rooms
The issue will come before the court later on full review, but this is a strong indication that a majority of justices, maybe even unanimously, will not force girls to share their sports teams, bathrooms, and locker rooms with boys who identify as girls.
We have covered the Biden/Harris Department of Education’s attempt to rewrite the rules under Title IX to treat “gender identity” as the equivalent for “sex” under the statute, thereby making gender identity discrimination a federal violation. (You may recall that under a separate employment statute the court, in a Gorsuch opinion held that “on the basis of sex” included sexual orientation and identity.)
But more, the new rules would have had the effect of requiring that schools allowe boys who identified as girls into girls’ sports, bathrooms, and locker rooms. It also would have broadened the definition of harassment Legal Insurrection Foundation filed an opposition to the new rules.
Lower courts, including multiple courts of appeal, have issued injunctions against the new rules. The Biden/Harris administration sought emergency review by SCOTUS. Don’t wish too hard for something, you might get it, and Biden/Harris got the review they wanted only to have the court slap them down, at least for now.
All Justices agreed that the injunctions should stay in place as to the three key provisions, but Gorsuch joined the liberals in dissenting that the non-controversial rule changes could have taken effect. Here are the three key rules (via Sotomayor dissent):
Every Member of the Court agrees respondents are entitled to interim relief as to three provisions of that Rule: 34 CFR §106.10 (2023) (defining sex discrimination), §106.31(a)(2) (prohibiting schools from preventing individuals from accessing certain sex-separated spaces consistent with their gender identity), and §106.2’s definition of hostile environment harassment.
From the Per Curiam (meaning in the name of the Court) Opinion denying the request for a stay of the injunctions:
The Department of Education recently issued a new rule implementing Title IX of the Education Amendments of 1972. The rule newly defined sex discrimination to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 89 Fed. Reg. 33886 (2024).
Several States and other parties sought preliminary injunctions against the new rule, arguing among other things that the rule exceeded the bounds of the statutory text enacted by Congress. District Courts in Louisiana and Kentucky agreed with the plaintiffs and preliminarily enjoined enforcement of the rule in the plaintiff States. The Courts of Appeals for the Fifth and Sixth Circuits then declined to stay the injunctions in the interim period while those courts consider the Government’s appeals of the preliminary injunctions.
The Government has now filed emergency applications in this Court seeking partial stays of the preliminary injunctions pending resolution of the appeals in the Fifth and Sixth Circuits. The Court denies the Government’s applications.
Importantly, all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity. But the Government argues (and the dissent agrees) that those provisions should be severed and that the other provisions of the new rule should still be permitted to take effect in the interim period while the Government’s appeals of the preliminary injunctions are pending in the Courts of Appeals. The lower courts concluded otherwise because the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule. Those courts therefore concluded, at least at this preliminary stage, that the allegedly unlawful provisions are not readily severable from the remaining provisions. The lower courts also pointed out the difficulty that schools would face in determining how to apply the rule for a temporary period with some provisions in effect and some enjoined.
In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule. Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect. Moreover, related to the equities, the Sixth Circuit has already expedited its consideration of the case and scheduled oral argument for October. The Court expects that the Courts of Appeals will render their decisions with appropriate dispatch. In light of all of the circumstances, the Court denies the Government’s applications for partial stays.
The issue will come before the court later on full review, but this is a strong indication that a majority of justices, maybe even unanimously, will not force girls to share their sports teams, bathrooms, and locker rooms with boys who identify as girls.
🚨BREAKING: In a 5-4 decision, SCOTUS has struck down the Biden-Harris administration's rewrite of Title IX, which would have allowed men in women’s sports, bathrooms, locker rooms, dorms, and compelled speech.
HUGE win. Onward! pic.twitter.com/MwOmRYpgg3
— Riley Gaines (@Riley_Gaines_) August 16, 2024
VICTORY!
In what I predict will be the first of two (or more) victories for biological reality, sex-based rights, the First Amendment, and parental rights, the U.S. Supreme Court has….
……just denied the Biden Administration's request to let the illegal Title IX rule… pic.twitter.com/IbLWfWBloP
— Sarah Parshall Perry (@SarahPPerry) August 16, 2024
Let me rewrite this headline @nytimes …
Supreme Court upholds Title IX, protecting women’s sex based rights in the education system. For now. pic.twitter.com/3m15Fi0JxB
— Jennifer Sey (@JenniferSey) August 16, 2024
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Comments
good
come on “men” keep invading the females locker rooms etc
let these leftist loving females see what havoc they have brought onto themselves
maybe trump will gain some new disgruntled votes from this pileup
thank you G_D for giving the USSC
the wisdom to see this foolishness
thank you for protecting them and continue to give them wisdom.
Thank you for giving us President Trump. Please continue to protect him and guide him.
In Jesus name and by his Blood.
Sorry for the down vote. Accidential fat thumb
There should be no rule-making authority for the Department of Education in the first place.
If we simply MUST have a Department of Education, it should simply serve in an advisory role to Congress.
I would hope that one or more states would announce that they will be ignoring the Department’s rule.
Let the Democrats try to sue, and help bring back the proper process to create legislation the Framers intended.
There should be no Department of Education at all. It hasn’t done public education in the United States one bit of good. Dissolve it as just another failed government experiment and return the exclusive authority to regulate public education back to the states where it belongs.
This is true. However, dissolving it would not “return the exclusive authority to regulate public education back to the states where it belongs”. Title 9 would still be federal law, and thus binding on the states, and some department would still have to administer it and make regulations pursuant to it. Title 9 precedes the DOE; it was administered by the Department of Health, Education, and Welfare. Any bill abolishing the DOE would have to specify which department should take over making those regulations.
There should be no department of education!
Why not? Why should it be different from any other department that Congress has created?
This particular rule is now enjoined, so they’re free to ignore it. But in general regulations made pursuant to authority granted by Congress are the law of the land, and binding on the states.
Departments and agencies making regulations is what the framers intended. It’s how the USA has been run since 1789. There has never been a time when a department or agency had to go back to Congress to enact its regulations as statutes.
PS: What the constitution’s framers intended is irrelevant. All that matters is the text that the ratifying conventions ratified, as that text would have been understood by the general public at the time.
Wonderful news.
Until KBJ figures out how to define a woman, I am not so sure about a unanimous SCOTUS vote,
The vote to uphold the injunction, at least as to the controversial rules, was unanimous.
Gorsuch isn’t too strong on what a woman is either. He votes with KBJ on these cases
Maybe he needs to watch a Matt Walsh movie
Thank God nine stooges can decide if values held for centuries by civilized society will continue to be permitted.
5!
We all must submit to our robed overlords.
But 5-4…. good grief.
Only as to severability of the controversial rules from the rules that nobody is disputing.
Weirdo Walz installed tampons in boys restrooms in public schools?
He denies it, but yes.
I can no longer take an interest in the subtleties of the legal arguments surrounding these issues. Decades ago some legislators wrote some anti-discrimination rules whose current proposed interpretation would have utterly flabbergasted them. Yet, highly intelligent people, who chose to dedicate years to studying law (as opposed to a useful and uncrowded STEM subject), will endlessly litigate back and forth, an issue that should be rejected out of hand, with sanctions against those who had the temerity to even raise it.
Our society has been taken over by a rapacious, credentialed elite, and nothing short of a complete dismantling of the system can be of any use.
I intend to vote for Harris. I want to hasten the utter ruin, so I can sooner participate in the rebuilding of something new. Our republic is dead.
Thanks a lot quitter
This is the second time that Gorsuch has capriciously joined the pro-tranny brigade, against all rationality, jurisprudential integrity and soundness, moral probity and common sense.
The first time being his awful, indefensible, foolish and illogical majority opinion/diktat in Bostock, expanding Title VII’s protections to trannies, despite that group never having been mentioned or contemplated by the statute’s text, or, by its legislator-drafters.
You think he likes dressing up in that robe a little too much?
Anything is possible, in the D.C. Swamp.
No, it didn’t. What it held was that “on the basis of sex” means you can’t have any rule that applies only to members of one sex, including rules such as “you can’t wear a dress to work — unless you’re a woman”. It held that that’s not discrimination on the basis of sexual identity, and thus not covered by the law, it’s discrimination on the basis of actual sex, and thus covered.
Here the issue is different; here the administration is trying to pretend that “on the basis of sex” includes “sexual identity”, and the court has never upheld that, and isn’t about to now.
If Jefferson or Madison could see that an Executive branch Cabinet can make rules with the force of law — in direct contradiction to the crystal clear “All legislative power shall be vested in a Congress” clause — they would be wondering if we lost our minds. Then we would assure them we didn’t because we need a way to let boys in the girl’s bathroom without having to worry about the public’s opinion and the Constitution just got in the way.
Regulatory power does NOT contradict the constitution, and both the Jefferson and Madison administrations DID make regulations, as has EVERY administration since 1789.