C'mon, man! Biden judicial nominees help block his Title IX gender identity regulation

Judicial skepticism of the Biden administration's Title IX regulation, which interprets the 51-year-old law prohibiting sex discrimination in federally funded education as also covering gender identity, has leapt from federal district courts to appeals courts, including one known for putting First Amendment rights over students' feelings.

The 6th U.S. Circuit Court of Appeals' declining Wednesday to stay a preliminary injunction by U.S. District Judge Danny Reeves could signal hurdles for the regulation in other circuits, given that President Biden's own nominee joined Republican nominees on the three-judge panel in questioning the gender-identity provisions, though not the whole regulation.

Reeves also has a bipartisan pedigree, nominated by President George W. Bush to the federal bench and President Obama to the U.S. Sentencing Commission. The "arbitrary and capricious" regulation "dramatically alter[s] the purpose and meaning of Title IX" and "violates government employees' First Amendment rights," he ruled.

The three-judge panel granted the Department of Education one lifeline: expedited appeal of Reeves' injunction so a "randomly assigned argument merits panel" can hear it this fall.

The order is partly based on the 6th Circuit's own precedents, including a 2021 ruling against a public university for forcing professor Nicholas Meriwether to use a student's preferred pronouns, which led to a $400,000 settlement with Shawnee State University.

The 8th Circuit also blocked an Iowa school district policy that punishes "intentional and/or persistent refusal … to respect" a peer's gender identity.

The 7th Circuit ruled the opposite more than a year ago in finding that an Indiana school district had a "legitimate, nondiscriminatory reason" for firing music teacher John Kluge: causing "emotional harm" and disrupting the learning environment by not addressing transgender students by preferred names and pronouns in violation of his Christian faith.

But the Supreme Court's expansion of religious liberty protections soon after forced the case to return to district court, which ruled against Kluge again despite the new precedent. 

Kluge is back before the 7th Circuit again this month. His lawyers at the Alliance Defending Freedom filed his opening brief last week and 17 states led by Indiana, Kansas and West Virginia supported him Wedneday in a friend-of-the-court brief.

The 5th Circuit followed the 6th's lead Thursday in a decision not attributed to any member of the panel, though it notes Biden nominee Judge Dana Douglas would grant the Department of Education's motion for a partial stay to allow non-gender identity provisions to take effect.

"Plaintiffs from the outset of the litigation sought to overturn the entire Rule, which makes major changes in the scope of coverage of Title IX, adds complex, lengthy and burdensome recordkeeping and enforcement requirements, and extends Title IX to pregnancy for the first time," which DOE portrayed as simply a "clarification" of the law, the unsigned order states.

"With no briefing or argument below on the consequences of a partial preliminary injunction, we would have to parse the 423-page Rule ourselves to determine the practicability and consequences of a limited stay," said the panel, whose other members were Republican nominees Edith Jones and Kyle Duncan.

Democrats' conflation of sex and gender identity, which is often invoked to override sex in language as well as access to restrooms, locker rooms and athletic competition, has backfired on them recently not only in several courts but also a judicial nomination hearing.

Georgia Democrat Jon Ossoff joined with Republicans on the Senate Judiciary Committee to defeat President Biden's nominee Sarah Netburn due to his "concerns about the wisdom" of her decision as a magistrate judge to recommend transferring a biologically male child rapist who identifies as a woman to a federal women's prison.

"Another big win for Tennessee!" Attorney General Jonathan Skrmetti crowed about the 6th Circuit decision Wednesday, less than a week after that circuit upheld Tennessee's law treating sex on birth certificates as "historical fact unchangeable by an individual’s transition to a different gender identity." Both decisions were written by Chief Judge Jeffrey Sutton.

The new ruling keeps the Title IX regulation from taking effect next month in Indiana, Kentucky, Ohio, Tennessee, Virginia and West Virginia, and against members of Christian Educators Association International and a West Virginia female athlete who may otherwise be forced to compete with a biological male expected to transfer to her school.

Other courts have blocked it in Louisiana, Mississippi, Montana, Idaho, Kansas, Alaska, Utah and Wyoming.

The latter four are covered by a Kansas federal judge's injunction that functionally blocks the regulation in schools nationwide by covering schools attended by members of the associational plaintiffs and their minor children: Young America's Foundation, Female Athletes United and Moms for Liberty. 

YAF and FAU this week in a 26-page legal exhibit provided lists of colleges where they claim to have members, covering nearly 700 schools in all 50 states. 

Inside Higher Ed created a searchable database of affected colleges, saying more than half are in "26 states that aren’t currently suing the Biden administration over the regulations." U.S. District Judge John Broomes hasn't approved the list but "didn’t establish any membership-verification requirements," the publication reported.

Sutton's ruling invokes Justice Neil Gorsuch's concurrence in last year's Supreme Court decision prohibiting racial preferences in college admissions, "distinguishing the Equal Protection Clause from Titles VI and VII," the Civil Rights Act statutes for racial and employment discrimination, respectively.

"As many jurists have explained, Title VII's definition of discrimination, together with the employment-specific defenses that come with it, do not neatly map onto other areas of discrimination," Sutton wrote, referring to the Biden administration's repeated argument that Gorsuch's Bostock opinion on transgender employees justifies its reinterpretation of Title IX.

Title VII and Title IX not only use "materially different language" about sex but "serve different goals and have distinct defenses," the order says, referring to the 6th Circuit's ruling for professor Meriwether three years ago.

Congress also enacted Title IX through its spending power, meaning it "must speak with a clear voice before it imposes new mandates on the States."

Sutton emphasized the "modest disagreement" between the Republican nominees, himself and Judge Alice Batchelder, and Biden nominee Andre Mathis is limited to whether other parts of the regulation can take effect.

"Through it all, each of the provisions that the Department wishes to begin enforcing on August 1 implicates the new definition of sex discrimination," Sutton wrote. "It is hard to see how all of the schools covered by Title IX could comply with this wide swath of new obligations if the Rule's definition of sex discrimination remains enjoined."

Mathis wrote in dissent that the full injunction is "broader than necessary to prevent Plaintiffs' alleged irreparable harm" while causing irreparable harm to the Department of Education "by the interference with its rule-making authority." He said the feds could use the "pre-Rule understanding of what constitutes sex discrimination under Title IX."