Biden-Harris Title IX transgender rules blocked in 21 states

A federal court last week blocked the Biden-Harris administration’s new Title IX transgender regulations in six more states, bringing the total to 21 which have won reprieve from the rules.

The rules, which create new rights for LGBTQ+ students, took effect in other states on August 1, including in many Wisconsin schools. For the moment, ongoing litigation will prevent the rule from taking hold in some Wisconsin school districts but not in others, and parents are advised to consult their local school districts to determine that district’s status.

In the latest decision, judge Rodney Sippel of the Eastern District of Missouri added Arkansas, Iowa, Missouri, North Dakota, Nebraska and South Dakota to the list of sites where the rule is enjoined. In the decision, Sippel concluded that the states could well prevail in the case, in which they argue that the regulations exceed the Department of Education’s authority and violate the First Amendment.

Specifically, the rules rewrite Title IX protections to assert that “discrimination on the basis of sex” includes “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The states assert that the final rule violates the Administrative Procedure Act (APA) because it exceeds the department’s statutory authority and is arbitrary and capricious because “it requires states, schools, and universities to ignore biological sex in favor of self-professed ‘gender identity’ when it comes to bathrooms, locker rooms, athletics, and even speech.”

In addition, the states argue that the rule interferes with their sovereign right to create and enforce their own laws, imposes administrative costs and burdens, and requires plaintiff states to redesign or reconfigure their physical facilities. 

What’s more, they contend that the administration seeks to regulate Title IX in a manner that is not compatible with their specific state laws. Arkansas, for example, requires that overnight accommodations on school travel be separated by sex of the student; Iowa schools designate multiple occupancy restrooms based on biological sex; Nebraska separates toilet facilities, locker rooms, and living facilities by sex; and North Dakota must designate dormitory restrooms and showers exclusively for males or females and may only be used by members of that sex.

All of those standards would disappear with the new rules.

Better than no chance at all

In the decision, Sippel determined that the states met their preliminary burden of demonstrating a “fair chance” that they would prevail on the merits of their claims.

For starters, the judge ruled, Congress intended for Title IX to provide protections based on biological sex.

“At the time Title IX was enacted in 1972, the term ‘sex’ was understood to mean the biological distinctions between males and females,” Sippel wrote. “The legislative history also supports a finding that the term ‘sex’ refers to biological sex as one of the principal purposes of the statute was to root out discrimination against women in education.”

Simply put, Sippel wrote, the legislative history, which included statistics on the number of women and men being included in various programs and activities, shows that Congress was concerned about the unequal treatment between men and women for admissions opportunities, scholarships, and sports. 

And, the judge continued, the states’ argument that the term “sex” means biological sex finds support in the text of the statute itself. 

“As plaintiffs point out, Title IX explicitly provides exceptions to the nondiscrimination mandate, including ‘father-son’ and ‘mother-daughter’ activities, which if provided for ‘one sex,’ shall not be precluded for the ‘other sex’ as long as the ‘other sex’ has opportunities for ‘reasonably comparable activities,’” he wrote. “Title IX also carves out an exception permitting an educational institution’s maintenance of ‘separate living facilities for the different sexes.’”

Finally, Sippel wrote, Title IX separately and explicitly referred to “transgender status.” 

Another argument made by the states contends that the rule’s harassment definition runs afoul of the First Amendment by unconstitutionally chilling speech, specifically by labeling the misuse of pronouns —or so-called misgendering — as harassment. The rule’s “severe or pervasive” standard considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment.

Sippel determined that the state had a fair chance to prevail on the First Amendment argument.

“Other courts considering this issue have explained at length the potential ways in which the final rule’s interpretation of sex in combination with its definition of sexual harassment may run afoul of the First Amendment,” Sippel wrote. “After due consideration of these persuasive authorities, and given the Eighth Circuit’s recent acknowledgment that the constitution does not require government officials to use ‘preferred gender pronouns’ ‘in part because the speaker has a First Amendment right’ to even ‘the misuse of a pronoun,’ the court concludes that plaintiffs have met their preliminary burden of demonstrating at least a fair chance of prevailing on their claim that the rule violates the First Amendment.”

Sippel also found that the states did run the risk of irreparable harm if he allowed the final rule to take effect on August 1.

“Plaintiff states will incur costs that cannot be recouped including costs to update policies, materials, and hiring additional Title IX staff,” he wrote. “Further, states are required to comply with the final rule in a short period of time.”

Sippel cited a similar decision by a Tennessee court, which held that “[p]laintiffs have sufficiently demonstrated that the compliance costs here are extraordinary due to the sweeping policy changes they are required to implement and the short timeframe in which they must do so. And because the recovery of these costs would necessarily be barred, this factor weighs in favor of a finding of irreparable harm.”

Likewise, Sippel continued, the states also sufficiently demonstrated that the final rule, if allowed to take effect, would prevent enforcement of several enumerated laws, which suffices to show irreparable harm. 

“The injury that results when a state cannot enforce ‘statutes enacted by representatives of its people,’ is irreparable,” he wrote.

Sippel also considered a balance-of-harm factor, that is, that the federal government could also suffer irreparable harm if it could not enforce the rule.

“Although the department could face irreparable harm if unable to enforce a valid regulation, any interest the department may have in enforcing a final rule that is contrary to law is outweighed by plaintiffs’ interests in having their constitutional rights protected,” he wrote. “Further, the court concludes that it is in the public interest to prevent the violation of constitutional rights.”

And there was the fact that the current Title IX interpretation had been operative for half a century.

“The court also considers the fact that the regulations currently in effect have essentially been unchanged for approximately 50 years,” he wrote, citing another decision. “Therefore, it would be of relatively little harm to others to maintain the status quo pending the resolution of this lawsuit.” 

All in all, the injunction was not only warranted but essential, Sippel wrote.

“Upon due consideration of the principles underlying preliminary injunctions and the magnitude of the final rule’s impact upon plaintiffs, the importance of enjoining the final rule, and thus preserving the status quo, is essential,” he wrote.

Notably, it should be pointed out that this rule does not impact sports but carves out an exception for athletics regulation. However, a separate proposed rule is coming down the pike that will amend the athletics regulation.

Rule takes effect in the Badger state

Wisconsin is not one of the states where the rule has been enjoined, and so it took effect this week but only in certain school districts because of the impact of litigation. 

That’s not to say it is without controversy. In April the Wisconsin Institute for Law & Liberty (WILL) warned that litigation would be forthcoming.

“School boards facing pressure from advocacy organizations and possibly the Office of Civil Rights within the Department of Education should know that these new regulations will face substantial legal challenges,” WILL stated. “WILL is following this litigation.”

WILL said the new rules represented an attack on women across the country.

“Title IX was meant to protect the rights, safety, and well-being of women and girls in educational activities,” WILL education counsel Cory Brewer said. “But these new regulations turn the intent of the law on its head. Title IX has been in place for over 50 years, and President Biden and his administration are upending its promise of protection and instead pushing an extreme agenda that most of the country disagrees with.”

Brewer cited a Sun Prairie incident where he said girls were victims of sexual harassment by having a fully undressed male shower next to them in the girls’ locker room. 

“These changes are a troubling setback in our nation’s commitment to protect the rights and dignity of all students, especially women and girls,” he said.

Brewer observed that the U.S. Department of Education Office of Civil Rights opened a Title IX investigation into the Sun Prairie Area School District (SPASD) after WILL filed a complaint after the 18-year-old male student, who identified as transgender, showered completely undressed next to four freshman girls in the girls’ locker room.  

“Since the Biden administration has decided to insert gender identity into the meaning of sex discrimination, we have concerns with how this investigation will conclude,” he said,

WILL also intervened in a controversy in the Kiel School District, after three middle school boys were accused of sexual harassment for using “incorrect pronouns” when referring to a classmate. WILL challenged the district on First Amendment grounds and the school district closed its Title IX investigation against the boys.

The Title IX rule has also become a hot-button topic in at at least one state Assembly race this year, in which Republican candidates Jim Piwowarczyk and Don Pridemore are vying for the Republican nomination. In July, Pridemore voted to approve the new Biden administration language as a member of the Hartford Joint 1 School Board, but later asked that his vote be withdrawn and complained of being “misled and taken advantage of for the convenience of the administration.” 

Piwowarczyk, a former policeman who is also an editor at Wisconsin Right Now, said Pridemore should know what he’s voting on.

“The 98th Assembly district deserves to be represented by a legislator who won’t get things wrong on important issues and who will take the time to figure out what he’s voting on, rather than being a rubber stamp for the Biden administration,” Piwowarczyk said. “As the father of a female athlete in this district, I am furious by the school board’s vote. Pridemore should have done his due diligence and researched what he was voting on. He also should have shown up for the high school board’s discussion on the same topic. It’s all indefensible.”

Earlier this year, in the sports category, Governor Tony Evers vetoed a bill that would have banned high school transgender athletes from competing on teams based on their gender identity, saying the legislation “harms LGBTQ Wisconsinites’ and kids’ mental health.”