Joe Biden’s Department of Education suffered yet another smackdown Tuesday when a federal judge barred it from enforcing a radical expansion on Title IX from being applicable to biological sex to encompassing “gender identity” and “sexual orientation.”
At issue is a Department of Education rule promulgated in April that codified a “notice of interpretation” published by the Department.
- Protect against all sex-based harassment and discrimination. The final rule protects all students and employees from all sex discrimination prohibited under Title IX, including by restoring and strengthening full protection from sexual violence and other sex-based harassment. The rule clarifies the steps a school must take to protect students, employees, and applicants from discrimination based on pregnancy or related conditions. And the rule protects against discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics.
The guidance letter was the subject of a lawsuit by Texas Attorney General Ken Paxton.
RELATED: Texas Judge Slaps Down Biden’s Title IX Expansion for Transgender Students
Judge John W. Broomes of the US District Court for the District of Kansas (Trump appointee) issued a scathing 47-page opinion while enjoining enforcement of the new rule in four states: Alaska, Kansas, Utah, and Wyoming. Judge Broomes found the rule was 1) contrary to law, 2) the Department of Education lacked congressional authority to make the rule because of the Major Questions Doctrine, 3) the rule violates the Constitution’s spending clause 4) the rule violates the First Amendment because it is impermissibly vague and overbroad, and, finally, 5) the rule violates the Administrative Procedure Act because it is “arbitrary and capricious.”
The rule was found to be contrary to the law because it goes beyond the definition of “sex” in the statute, and it also redefines sex discrimination.
Significantly, the purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.” Id., at *12. 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.”
The vast changes required to implement the law and its deviation from Congress’s intent when the law was passed violate the Major Questions Doctrine.
The Final Rule clearly decides major questions involving whether to force schools, students, and teachers to accept an individual’s subjective gender identity regardless of biological sex. Further, it determines whether biological males who identify as females are allowed in female bathrooms and locker rooms. It further prohibits requiring any medical documentation or other documents to determine whether those beliefs are sincere and there are no limits on how “many times a person may change their gender identity.” Louisiana, 2024 WL 2978786, at *13. The Final Rule is applicable to “every public elementary school, middle school, high school, and college in the United States that receives federal financial assistance.” Id. The reach of the Final Rule is clearly significant. Further, States are threatened with hundreds of millions, or even billions, of dollars of lost funding if they fail to comply with the Final Rule. Moreover, States who have conflicting state laws will be required to spend significant sums to make improvements to facilities to comply with the Final Rule and their own laws. Id.
The physical changes to schools and athletic programs to accommodate a swirling maelstrom of changing sexual identities that were not made clear in Title IX and so can’t be imposed by a rule.
Unsurprisingly, given the Department of Education’s antipathy for speech that does not follow the progressive line, the final rule also shredded the First Amendment.
In sum, the court finds that this standard is impermissibly vague and overbroad. Tennessee, 2024 WL 3019146, at *27. 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. 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. Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1124 (11th Cir. 2022).
Based on what we’ve seen so far, Judge Broome’s ruling that the final rule was “arbitrary and capricious” added insult to injury.
In sum, the court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.
This ruling brings to five the number of federal courts that have enjoined the Department of Education from enforcing its bizarre interpretation in 15 states. The other states not included in this decision are Louisiana, Mississippi, Idaho, Montana, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.
With the end of “Chevron Deference” and Biden’s reign of stupidity and incompetence coming to a close, we should be able to close the book on what should be Exhibit 1 in the case to abolish the Department of Education.
