The U.S. District Court for the Eastern District of Kentucky – Northern Division blocked President Joe Biden’s Title IX rewrite, known as the Final Rule. The ruling applies nationwide.
“Because the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action, the plaintiffs’ motions for summary judgment will be granted and the Department’s motion for summary judgment will be denied,” wrote the Court.
In April 2024, Education Secretary Miguel Cardona announced a rewrite of Title IX to protect males in female sports and spaces.
The Final Rule had gender identity, sexual orientation, and sex characteristics.
The Department refused to provide a narrow definition of “sex” “to avoid overbroad application of a prohibition on discrimination based on sex stereotypes.”
Overall, 26 states sued the Biden administration to stop the rule from going into effect.
Judges kept siding with the states:
The Court stressed that Title IX’s phrase “on the basis of sex” means exactly what it says when Title IX became law: Sex is female or male. Title IX protects human beings born female. Basic biology!
The Department of Education also threatened to punish those who refuse to use a person’s preferred name or pronouns.
Well, the Court ruled that violated the First Amendment (bold emphasis mine):
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. See id. See also Wooley v. Maynard, 430 U.S. 705, 714 (1977).
Censorship just plain out sucks.
The Final Rule violated the Constitution’s Spending Clause since it threatened to withhold funds from schools that did not abide by the rewrite.
Legislation must satisfy a four-prong test to limit federal funds.
The Court found the Final Rule did not satisfy the fourth prong: “the conditions must not induce unconstitutional action.”
The discussion about the First Amendment proves that point. The Court expanded on it, explaining that “Title IX does not unambiguously condition the receipt of funds on the prohibition of gender identity discrimination.”
From the filing:
Here, the Department expands Title IX to encompass entirely new subject matter that is not contemplated by the text of the statute. Further, the Department “has not had regulations regarding gender identity discrimination on the books for several years and, just a few short years ago, took a position contrary to the one being advanced today.” Id. at *13. In the absence of a clear statement from Congress, particularly when the extensive consequences of the Final Rule are considered, the Final Rule cannot stand.
Courts use the arbitrary and capricious test to assess actions taken by administrative agencies.
The Administrative Procedure Act of 1946 tells courts to strike down actions if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”.
In the law, arbitrary and capricious means the “conduct is willful and unreasonable action without consideration or regard for the facts and circumstances.”
The Court found the Education Department did “not provide a reasoned explanation for departing from its longstanding interpretation of Title IX.”
The Department attempted to justify the change with a SCOTUS ruling on Title VII, not Title IX.
Further, the Department fails to account for the glaring inconsistencies that the Final Rule creates within Title IX. It acknowledges that Congress has deemed sex separation (and thus, more than de minimis harm) permissible in various circumstances such as social fraternities and sororities and living facilities. See 20 U.S.C. §§ 1681(a)(6), 1686. Yet, the new regulations say that recipients cannot separate the sexes (thus inflicting more than de minimis harm) for purposes of other “living facilities” such as bathrooms, toilets, or showers. See 34 C.F.R. §§ 106.31, 106.33. In support, the Department cites “case law, research, testimony and comments from stakeholders, and evidence from schools’ many years of practical experience” indicating “that preventing a person from participating in a program or accessing a sex-separate facility consistent with their gender identity subjects them to harm.” [Record No. 133, p. 25 (citing 89 Fed. Reg. 33818 19).] Assuming this is true, doesn’t it also subject such persons to harm when they are prevented from participating in the social fraternity or sorority consistent with their gender identity? Or when they are prevented from residing in a living facility consistent with their gender identity? It seems clear that the answer is “yes,” which indicates that Title IX does not encompass the issue of gender identity at all.
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