'Humiliating, degrading, erasing women': GOP states swarm Biden Title IX regulation with lawsuits

Fifteen states, four lawsuits, three federal courts of appeal. U.K. goes other way, with NHS defining "sex as biological sex" to keep men off women's wards and commissioned review urging against "medical pathway" for confused kids.

Published: April 30, 2024 11:03pm

The onetime trend of Republican attorneys general banding together in one bunker-buster lawsuit against a Democratic administration is out. The legal equivalent of drone warfare is in.

At least 15 states with Republican AGs filed four lawsuits on the same day, in jurisdictions overseen by three U.S. circuit courts of appeal, against the Department of Education's newly finalized Title IX regulation.

The 1,577-page rules would strip four-year-old due process protections from college students accused of sexual misconduct and add gender identity to the sex discrimination law, with far-reaching ramifications for male access to female locker rooms, restrooms and possibly athletic competition, the subject of a separate ongoing rule-making.

The states stand to lose billions in federal funding for their public schools if they don't comply. 

Several groups threatened litigation in response to the rules for violations of the Administrative Procedure Act and Title IX itself, as well as the First Amendment due to the speech implications of the broader definition of sexual harassment and prohibitions on misgendering.

Parents Defending Education, Independent Women's Forum and Speech First joined the lawsuit led by Alabama, and filed Monday, with Georgia, Florida and South Carolina. PDE President Nicki Neily, the founding president of Speech First, said the regulation redefines harassment to cover "little more than a one-off expression of humor, satire, or parody."

Riley Gaines, who is leading a suit against the NCAA for letting males who identify as women compete in women's sports, appeared with Tennessee AG Jonathan Skrmetti at a Tuesday press conference announcing his suit with Kentucky, Ohio, Indiana, Virginia and West Virginia. Transgender swimmer Lia Thomas took Gaines' trophy in a tie. 

"Under this radical and illegal attempt to rewrite the statute, if a man enters a woman’s locker room and a woman complains that makes her uncomfortable, the woman will be subject to investigation and penalties for violating the man’s civil rights," Skrmetti said in a press release.

Indiana AG Todd Rokita said separately that "leftists are trying to twist Title IX to codify the very kind of anti-woman prejudice and discrimination this law was originally intended to remedy," which is inferior opportunities for female relative to male athletics.

Former Trump White House aide Stephen Miller's America First Legal is co-counsel with Texas AG Ken Paxton in the Lone Star State's standalone challenge to the rules, which would trump the sexual-misconduct regulation produced by Miller's administration in 2020.

Miller called the Biden regulation a "vile obscenity" and "abomination" whose end is "humiliating, degrading, and erasing women."

The U.S. Equal Employment Opportunity Commission released similar guidance on a party-line vote this week, deeming an employer's refusal to use a worker's preferred pronouns or let them use the opposite-sex restroom prohibited harassment. Rep. Claudia Tenney, R-N.Y., told "Just the News, No Noise" that amounts to unconstitutional compelled speech.

It's not clear whether the Republican AGs are coordinating their lawsuits to maximize the chances of getting one or more circuits to grant or uphold a preliminary injunction against the rules, which are now official with publication in the Federal Register on Monday.

Louisiana leads a suit with Montana, Idaho and Mississippi despite sharing the conservative 5th Circuit with Texas and both cases would go there on appeal. The other suits are filed in lower courts answerable to the 6th and 11th circuits, which also lean conservative.

The redefinition of sex to include a self-determined inner feeling sometimes at odds with biology is receding into a distinctly American phenomenon in some ways.

Changes to the U.K.'s National Health Service constitution, slated for next year, would define "sex as biological sex," prohibiting men who identify as women from admission to female-only wards and letting female patients request "intimate care" from another woman "where reasonably possible," The Telegraph reports.

Hilary Cass, former president of the Royal College of Paediatrics and Child Health, submitted her long-awaited final report and recommendations on gender identity services for children and young people last month.

Commissioned by NHS England in the wake of whistleblower allegations against the U.K.'s youth gender clinic known as Tavistock, Cass's independent review concluded the evidence base for so-called gender affirming care in kids is "poor quality."

She said the "rationale for early puberty suppression remains unclear" and "the medical pathway will not be the best way" for most gender-confused children "to manage their gender-related distress." Clinicians should practice "extreme caution" with requests for "masculinising/feminising hormones" from minors.

"Some young adults have told us that they wish they had known when they were younger that there are many more ways of being trans than following a binary medical transgender pathway," Cass wrote in the British Medical Journal last month, summarizing her report. 

"The fastest growing identity under the trans umbrella is non-binary ... many of whom want a spectrum of treatments falling short of full medical transition," Cass said. Their situation "raises questions about what medicine can do, what medicine should do, and more specifically what the NHS should do."

The U.K. government also released guidance for schools in England at the end of 2023 that strongly resembles red-state legislation and school board policies, urging them not to even socially transition children with gender confusion and consult parents by default when children request transition. It repeatedly cites Cass's periodic updates on her review.

The four AG suits, filed in Kentucky, Alabama, Texas and Louisiana, have two defendants in common: Education Secretary Miguel Cardona and the department itself. The Kentucky and Alabama suits name only those two.

Catherine Lhamon, who directed the Office for Civil Rights in the Obama administration and returned for President Biden's term, appears only in the Texas and Louisiana suits. Deputy Assistant Secretary for Enforcement Randolph Wills is unique to Texas, while the Justice Department and Attorney General Merrick Garland are solely named by Louisiana.

The Alabama suit with the private plaintiffs accuses the Biden administration of caving to pressure from progressive activists to take "unilateral executive action" after legislation to add gender identity to Title IX twice failed in President Obama's second term, the second time purportedly to codify 2014 guidance overseen by Lhamon.

Congress made its intentions even clearer by reauthorizing the Violence Against Women Act with a new prohibition on gender identity-based discrimination tied to federal funding, the suit argues. 

The law distinguished gender identity from sex, emphasized it doesn't block funds when "sex segregation or sex-specific programming is necessary to the essential operation" of the program, and even has a section written in "explicitly biological terms" that prohibits "female genital mutilation or cutting," the Alabama suit says.

The Kentucky suit argues the regulation is drafted so loosely it allows anyone "attempting to participate" in a federally funded program, "including students from other schools, visiting lecturers, and invited community members," to use sex-based facilities of their choice while on campus and punishes schools for the least effort to verify a "self-professed gender identity."

It references the protections against compelled use of preferred pronouns handed down by Kentucky's controlling appeals court, the 6th Circuit, in a lawsuit victory for professor Nicholas Meriwether at Ohio's Shawnee State University.

"Yet instead of grappling with the clear constitutional implications of the Final Rule’s contrary harassment guidelines, the Department punts any First Amendment problems to resolution on a case-by-case basis," the suit says. "The resulting regime is cold comfort to the teachers and students who now must toe the line of gender-identity directives or risk Title IX sanctions."

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