'The biggest one': Title IX gender identity rewrite blocked nationwide under new SCOTUS precedent

The Commerce Department was the first victim of the Supreme Court's decision Friday banning the administrative state from defining its own authority, ending four decades of so-called Chevron deference that first inoculated the Environmental Protection Agency against judges second-guessing its interpretation of ambiguous laws.

It took two business days for another victim to emerge in a case far more relevant to ordinary Americans than Loper Bright Enterprises v. Raimondo, which prohibits Commerce from charging fishing vessels for the federal monitors the agency requires on their boats.

U.S. District Judge John Broomes on Tuesday cited the oven-fresh SCOTUS precedent in approving the third preliminary injunction – and the most far-reaching yet – against the Biden administration's Title IX regulation that adds gender identity to the sex-discrimination law enforced by the Education Department. 

The quickness of the precedent's application to ongoing litigation in lower courts shows the mortal peril that federal agencies face from judges scrutinizing how far they've gone to fill in the alleged gaps left by Congress for the first time since the Reagan administration.

The high court also threw into disarray administrative law proceedings by agencies' in-house judges, who rarely rule against their employers, through its new ruling in Jarkesy v. SEC requires agencies to seek civil penalties against defendants in a real court of law before a jury.

The new injunction brings the number of states in which the Title IX regulation is officially blocked to 14, with the addition of state plaintiffs Alaska, Kansas, Utah and Wyoming.

But Broomes' order also applies to any federally funded school nationwide connected to the associational plaintiffs: Moms for Liberty, which has chapters in 48 states; Young America's Foundation, which supports college conservatives; and Female Athletes United, whose domain name was just registered in February and has no posted contact information.

That means the feds cannot enforce the regulation, including access to restrooms, locker rooms and athletic competition by gender identity and prohibitions on misgendering, on K-12 school districts in which Moms for Liberty members have minor children, schools attended by FAU members and colleges with Young Americans for Freedom chapters.

YAF told Just the News it has "activists" on 2,000 college campuses, and Moms for Liberty said it has 130,000 members in 300 chapters. 

Kansas GOP Attorney General Kris Kobach claimed Wednesday the injunction will stop the regulation "in all 50 states," and he called the victory "the biggest one" he's ever achieved in court.

Kobach cited Broomes' speculation that the regulation permits "an industrious older teenage boy" to fake an identity as a girl "so that he can observe his female peers disrobe and shower."

Broomes ordered the associational plaintiffs to identify by July 15 the schools in which their members or their minor children attend so the feds know which cannot be sanctioned for violating the regulation.

The feds must use legal discovery if they demand the "names of members or their children," subject to Broomes' review and possible protective orders.

Courts "may not defer to an agency interpretation of the law simply because a statute is ambiguous" under the Administrative Procedure Act, but must use their "independent judgment" to determine whether "an agency has acted within its statutory authority," the President Trump appointee wrote Tuesday, citing Loper Bright.

Broomes returned to the precedent several pages later, saying even if "sex" was ambiguous he's no longer bound to accept the agency's interpretation. "The DoE simply lacks authority to expand sex to mean gender identity," which would render Title IX's written exceptions "meaningless" and usurp the sole authority of Congress to decide "major questions."

Judges answering to three federal appeals courts – the 5th, 6th and now 10th circuits – have now concluded the "unambiguous plain language of the statutory provisions and the legislative history" mean that "sex" in Title IX can only mean "the traditional concept of biological sex in which there are only two sexes, male and female," as Broomes put it.

The feds didn't deny this but rather argued that "this makes no difference because discrimination on the basis of gender identity is discrimination on the basis of biological sex," relying on the Supreme Court's Bostock ruling but, he said, ignoring its limitation to employment law and its intentional silence on "bathrooms, locker rooms, or anything else of the kind."

Title IX, unlike Title VII, has "carve outs which explicitly allow discrimination based on (biological) sex," Broomes wrote, picking apart the feds' attempt to distinguish "living facilities" – where the regulation says schools can maintain sex segregation – from bathrooms and locker rooms, where they cannot.

"Given Congress’ stated concern about privacy for students, it would be counterintuitive if that privacy only extended to students who lived in student housing" but not the bathrooms and locker rooms "used for activities of daily living such as bathing and dressing," he said.

The Association of Title IX Administrators told its 9,000 active members a week before Loper Bright's ruling how to handle the two injunctions covering 10 states that had been handed down by judges hearing Title IX regulation challenges but didn't foresee an injunction like Broomes'.

More than half of the states could end up covered by injunctions based on the plaintiffs in five lawsuits, said Brett Sokolow, ATIXA's founding executive director and now chairmen of its advisory board. He faulted the judges for not taking "a restrained approach."

The group believes that "sexual orientation and gender identity have long been protected by Title IX" before the Biden administration's revision, which was "not so much an expansion of Title IX as a clarification of its scope," he wrote, the opposite conclusion as three courts now.

Sokolow warned members their institutions "may need to comply" with the regulation "at a moment's notice" if a court lifts an injunction or lets it expire, so they should "give some careful thought to policy revision/preparation and training" and "have something on the shelf."