Biden’s Trans Student Policy Encounters Court’s Grammar Queries

A Sixth Circuit judge on Wednesday pressed an attorney for the Education Department on why its rule barring discrimination based on sexual orientation and gender identity in federally-funded schools doesn’t run into problems because of a few select words in the law used as its backing.

Judge Richard Allen Griffin questioned whether the government wrongly applied the Supreme Court’s 2020 holding in Bostock v. Clayton Cnty., which said Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexual orientation or gender identity, to the rule under the education-focused Title IX.

That’s because Title VII uses the phrase “because of” when referring to sex, which refers to multiple items, while Title IX uses the phrase “on the basis of,” which is singular, Griffin said.

“Isn’t it quite clear that it’s the multiple causations in Bostock that’s the heart of the opinion?” asked Griffin during oral arguments in Cincinnati for the US Court of Appeals for the Sixth Circuit. Justice Department trial attorney David L. Peters, who represents the Education Department and Secretary Miguel Cardona, responded by saying that’s true in Title IX as well, but Griffin again said that’s not the same language.

The exchanges were part of 45 minutes of oral arguments that could determine the future of the rule in six states.

The Biden-era rule is blocked in more than half the states, according to an attorney for the legal organization Alliance Defending Freedom, which represents the group Christian Educators and a student. The Sixth Circuit—which is hearing an appeal to an order blocking the rule in Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia—is the first to hear arguments on the preliminary injunctions several judges have put in place, he said.

Peters argued that a federal judge in Kentucky “fundamentally erred” when he blocked key provisions of the rule.

The challenging states “think that Title IX has nothing to say in context when schools give a kid detention for being transgender, they bar a kid from homecoming for being gay, they force a student to sit on the back of the bus for being transgender, or bar them from band, or bar them from homecoming, or bar them from the pep rally,” he said.

‘No Glide Path’

The six states argued in their brief that the justices made clear that the high court’s Bostock ruling “is no glide path to rewriting laws.”

Whitney D. Hermandorfer, director of strategic litigation for the Tennessee attorney general’s office, told the judges that Title IX “does not require that girls shower and then dress with boys, compete against boys with physical advantages, and room with boys on overnight school trips.”

She told the panel that “the rule imposes these and other unprecedented mandates that gut Title IX’s protections for women and privacy.”

The judges didn’t seem to tip their hand on their potential ruling. Griffin, an appointee of President George W. Bush, also asked Peters if the rule was problematic because of the Education Department’s shifting views on the subject across different administrations.

Griffin also pushed Hermandorfer for reasons why the full rule, and not just the provisions she deems problematic, should be blocked.

Judge Andre B. Mathis, an appointee of President Joe Biden who dissented while serving on another panel that declined to pause the injunction—a decision left untouched by the US Supreme Court—noted to Hermandorfer that Bostock interchangeably used “because of” and “on the basis of.”

Hermandorfer replied that opinions aren’t generally read the same as laws, and said there was no evidence of discrimination based on gender identity in the six challenging states.

“I do want to put that factual point on the table, that there has been no suggestion that this is occurring, and that’s because there are other protections that govern that type of conduct at the state and local level,” she said.

The case is Tennessee v. Cardona, 6th Cir., No. 24-5588, oral argument 10/30/24.