'There are two sexes': Court rulings stack up against Biden's Title IX gender identity mandate

The Biden administration's Title IX regulation redefining "sex" as inclusive of gender identity, with wide-ranging implications for access to school restrooms and athletic teams, free-speech rights of students and teachers and federal funding of education, is having a much tougher time in court than its predecessor's more limited rulemaking.

Judges in different federal appellate jurisdictions have blocked the regulation in 10 states four days apart, showing that Thursday's four-state injunction by U.S. District Judge Terry Doughty in Louisiana, part of the 5th U.S. Circuit Court of Appeals, was not a fluke.

"There are two sexes: male and female." So opens the 93-page ruling Monday by U.S. District Judge Danny Reeves in Kentucky, in the 6th Circuit, elaborating in a footnote that the feds "made this concession during oral arguments" but "agreed to little else" with the plaintiffs.

The gender-identity rewrite "dramatically alter[s] the purpose and meaning" of a sex-discrimination statute Congress passed after "years of intense legislative debate premised on the fixed biological dichotomy between males and females," Reeves wrote, calling the regulation "arbitrary and capricious."

It also "violates government employees' First Amendment rights" by controlling what they can say about both gender identity and sexual orientation, he said.

This week’s Labrador Letter announces our first-in-the-nation injunction against the Biden Administration’s unlawful attack on Title IX! https://t.co/aep5zWnyoq pic.twitter.com/0N0pRkBsAM

— Raúl R. Labrador (@Raul_Labrador) June 14, 2024

Reeves gave lengthy history lessons on both the lead-up to Title IX – including higher admissions standards for women and especially discrimination against married women – and subsequent statutory revision to explicitly apply Title IX to "intercollegiate athletics," as well as the American founders' dedication to freedom of speech as the bedrock of the new nation.

Without an injunction, "all plaintiffs" – Indiana, Kentucky, Ohio, Tennessee, Virginia, West Virginia, Christian Educators Association International and a pseudonymous 15-year-old Mountain State female athlete who "believes" transgender athlete Becky Pepper Jackson will transfer to her school next year – "will suffer immediate and irreparable harm," the judge said.

Numerous legal challenges to the Trump administration's Title IX rulemaking, which focused on creating more court-like disciplinary proceedings for sexual misconduct and strengthening due process protections for accused students, fell flat in the waning months of his term in 2020.

U.S. District Judge Richard Bennett, in Maryland, mocked arguments for legal standing in an ACLU-led challenge, the third at the time to fail, including a legal association saying its members would lose revenue because they'd get fewer cases and an anti-sexual assault group complaining, in Bennett's reading, it would have to "read the Rule and tell people what it says."

📣 @BetsyDeVos, @PaulaYScanlan, & @_selinasoule are in Grand Rapids, MI fighting for the rights of women! They joined IWV + @DFIPolicy for a press conference to urge policy leaders to #TakeBackTitleIX & protect women’s sports. Learn more: https://t.co/POOXkW1nWn pic.twitter.com/xwJty03WHw

— Independent Women's Voice (@IWV) June 17, 2024

While Doughty and Reeves were appointed chief judges of their district courts in recent years, the former has a reputation for repeatedly limiting federal agencies' authority on hot-button issues. 

The President Trump nominee issued a nationwide injunction against his successor's COVID-19 vaccine mandate for healthcare workers in 2021, and the next year permanently prohibited a mask-and-vaccine mandate for Head Start employees, volunteers and children in 24 states.

Last year Doughty issued a sweeping injunction – substantially narrowed by the 5th Circuit – against the feds even "encouraging" tech platforms to suppress disfavored-but-legal content, in a case the Supreme Court is expected to decide this month. Oral argument suggested the justices leaned toward giving the government a wide berth to pressure companies.

President George W. Bush nominated Reeves to the bench, but President Obama then nominated him to the U.S. Sentencing Commission. The Senate approved Reeves to the commission only after President Trump renominated him to a term ending in 2021.

The Kentucky judge is perhaps best known for striking down the Bluegrass State's prohibition on guns for subjects of domestic violence orders as a Second Amendment violation. But he also gave a 10-year prison sentence to a felon for two counts of illegally possessing a firearm, which relates to Reeves' reputation for giving long sentences.

Doughty's injunction protects Idaho, Louisiana, Mississippi and Montana and several school boards from enforcement of the regulation, is slated to take effect Aug. 1, and related loss of federal funding for noncompliance. Rapides Parish School Board, listed as its own plaintiff apart from the Pelican State, gets about 10% of its budget from the feds, a footnote says.

"There is nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/or women," he wrote last week. "The logic of Title IX was sound, the execution was flawless, and the application has had stellar results for years."

Doughty determined the SCOTUS precedent Bostock, on gender identity in employment, does not apply to Title IX or school contexts. The feds argued this despite the majority explicitly stating "we do not prejudge" whether their ruling expands beyond Title VII of the Civil Rights Act or even covers "bathrooms, locker rooms, or anything else of the kind" in Title VII, he noted.

Adding gender identity to sex "would essentially reverse the entire premise of Title IX, as it would literally allow biological males to circumvent the purpose of allowing biological females to participate in sports that they were unable to participate in prior to 1975," while creating "surplusage" by rendering "meaningless" sex-segregated exemptions in Title IX, he said.

"This case demonstrates the abuse of power by executive federal agencies in the rulemaking Process," Doughty wrote, noting SCOTUS has overturned Biden administration regulations related to COVID, environmental protections and student-loan forgiveness. "The abuse of power by administrative agencies is a threat to democracy."

Another big Tennessee WIN 🚨

New Title IX rule will not be going into effect in Tennessee on August 1 after federal court grants @AGTennessee's injunction.

More to come soon! pic.twitter.com/JQFmHJ275a

— TN Attorney General (@AGTennessee) June 17, 2024

Reeves' ruling is more than twice as long as Doughty's but reaches similar conclusions about violations of the Administrative Procedure Act, First Amendment and Title IX itself, including the inapplicability of Bostock beyond Title VII and turning the law "on its head." 

The new definition of "sexual harassment" may require educators to use students' preferred pronouns without consideration of "religious or moral beliefs," which amounts to compelled speech and "viewpoint discrimination," Reeves wrote.

He accused the feds of withholding a "reasoned explanation" for suddenly changing their definition of sex and providing "virtually no answers" to public comments asking why the Department of Education didn't eliminate old provisions that "conflict with the new gender-identity mandate" and concerns about "risks posed to student and faculty safety."

Not only did Biden's Title IX revision scrap his predecessor's, but it vastly expanded its predictable conflict with First Amendment rights by changing key clauses in the definition of harassment, namely that it can be "subjectively" offensive; "severe or pervasive"; and "limit" a person's ability to participate or benefit from a program, Reeves wrote.

The regulation even goes beyond school campuses, requiring school employees under Title IX to act whenever they have "information about conduct among students that took place on social media or other platforms" that may create "a sex-based hostile environment," and the feds poorly defended it, according to the judge.

Reeves said they selectively cited Justice Samuel Alito's concurring opinion in the profane-cheerleader social media ruling known as Mahanoy, ignoring the conservative jurist's declaration that student speech on "sensitive subjects" that is "not expressly and specifically directed" at the school is "almost always" off-limits to regulation.