Biden’s Title IX Transgender Rights Rule Blocked in More States

A second federal trial court on Monday preliminarily blocked an Education Department rule that bars discrimination based on sexual orientation and gender identity in schools that receive federal funding.

The preliminary injunction, issued by Judge Danny C. Reeves of the US District Court for the Eastern District of Kentucky, is limited to the plaintiff states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.

The rule has now been blocked for 10 states as last week the Western District of Louisiana issued a preliminary injunction against its enforcement in Louisiana, Mississippi, Idaho, and Montana.

Conservative litigators have targeted certain states and trial court districts to bring cases where they hope to obtain favorable rulings. Reeves, who was appointed by George W. Bush in 2001, struck down a law last year that would bar individuals under domestic violence orders from buying a gun.

The ruling marks a setback for the Biden Administration’s efforts to expand transgender rights and raises the stakes for the other states where litigation over the rule is moving ahead.

An injunction is warranted because the states are likely to succeed on the merits of their claim “that the Department exceeded its statutory authority in redefining ‘on the basis of sex’ for purposes of Title IX,” Reeves said.

“The Department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute,” Reeves said.

SCOTUS Precedent

Reeves rejected the department’s reliance on the US Supreme Court’s 2020 ruling in Bostock v. Clayton Cnty., in which the court found that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexual orientation or gender identity.

Bostock doesn’t extend to Title IX, Reeves said, because the case “was explicitly limited to the context of employment discrimination under Title VII.”

The Trump administration published a memorandum just days before he left office stating that the Bostock holding didn’t apply to Title IX.

The Biden administration reversed course, stating that there is “textual similarity between Title VII and Title IX,” and that the Supreme Court in Bostock “concluded that discrimination based on sexual orientation and discrimination based on gender identity inherently involve treating individuals differently because of their sex.” Although Bostock involved sex discrimination in employment, the administration said, “courts rely on interpretations of Title VII to inform interpretations of Title IX.”

Rejecting this argument, Reeves said, the majority in Bostock said “its decision did not ‘sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.’”

Reeves also cited a 2023 ruling by the US Court of Appeals for the Sixth Circuit allowing Kentucky and Tennessee to enforce bans on gender-affirming care for transgender minors until questions over the laws’ constitutionality are resolved. The Sixth Circuit found that Bostock is limited to Title VII claims, Reeves said.

The final rule also has “serious First Amendment implications,” Reeves said. Teachers “likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs,” Reeves said. “A rule that compels speech and engages in such viewpoint discrimination is impermissible,” he said.

Efforts to target transgender rights have grown since the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which held that states can’t deny same-sex couples the right to marry. Since then, conservative states have passed bathroom bans, transgender athlete bans, and targeted gender-affirming care for children.

The Supreme Court in January declined to consider whether transgender students have a legal right to use school bathrooms that match their gender identity.

The case is Tennessee v. Cardona, E.D. Ky., No. 24-cv-00072, 6/17/24.