A federal judge ordered on Friday that the Biden administration cannot force its false definition of sex on schools in 20 states — at least for now.
After the Department of Education published a rule redefining sex under Title IX to include so-called gender identity, a coalition of 20 states sued in federal court. On Friday, the United States District Court for the Eastern District of Tennessee issued a preliminary injunction preventing the administration from enforcing the rule in those states until the lawsuit is resolved.
Title IX prohibits sex discrimination in federally funded education programs. Under the new rule, the Department of Education’s Office of Civil Rights would enforce Title IX also “to prohibit discrimination based on sexual orientation and gender identity.”
A fact sheet from the Civil Rights Office gives examples of incidents it could investigate. One involves a male student not being allowed to use the girls’ restroom or try out for the girls’ cheerleading team.
Alliance Defending Freedom Senior Counsel Christiana Kiefer told The Federalist that this interpretation of Title IX is unlawful because the executive branch does not have the power to rewrite federal law.
Kiefer said it is also harmful, particularly to girls. “It harms all students, but especially young women, in that it opens up their private spaces — their locker rooms, shower facilities, potentially overnight trip accommodations, and yes, their women’s sports teams — to members of the opposite sex if they do nothing more than simply identify as female,” Kiefer said, noting that Alliance Defending Freedom filed a motion to intervene in the case on behalf of the Association of Christian Schools International and three female athletes at public schools.
The administration’s interpretation of Title IX relies on the Supreme Court’s decision in Bostock v. Clayton County, which held that an employee could not be fired just for being homosexual or transgender. Bostock, however, only dealt with Title VII, not Title IX, the lawsuit points out.
The Department of Education’s rule followed an executive order last January stating the Biden administration’s policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation.”
That order told the federal agencies to consider changing their rules and served as the basis for a U.S. Department of Agriculture policy requiring schools to allow boys into girls’ bathrooms in order to get federal funding for school lunches, as The Federalist previously reported.
According to Kiefer, how the case might affect actions it doesn’t directly challenge — such as the USDA policy — will depend on how broadly the court rules. In the meantime, the administration cannot enforce the Department of Education’s interpretation of Title IX against the 20 states that challenged it.
Tennessee Attorney General Herbert Slatery III said in a press release, “We are thankful the Court put a stop to it, maintained the status quo as the lawsuit proceeds, and reminded the federal government it cannot direct its agencies to rewrite the law.”
Editor’s note: This article has been updated to reflect that the comments attributed to Alliance Defending Freedom General Counsel Kristen Waggoner were made by Senior Counsel Christiana Kiefer.