Supreme Court Pushed to Uphold Block on Transgender Rights Rule

Three Republican attorneys general urged the US Supreme Court not to interfere with a lower court order prohibiting the Biden administration from extending sex discrimination protections to LGBTQ+ students.

Tennessee Attorney General Jonathan Skrmetti asked the justices in filing on Friday to reject the government’s emergency request to partially pause the order blocking an Education Department rule that bars discrimination based on sexual orientation and gender identity in schools that receive federal funding.

Skrmetti, together with the attorneys general of West Virginia and Kentucky, contended the ruling in question by the US District Court for the Eastern District of Kentucky isn’t “overbroad,” contrary to the government’s claim and that the department is unlikely to prevail on the merits.

The district court correctly rejected the department’s reliance on the Supreme Court’s 2020 Bostockruling, in which the majority found that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexual orientation or gender identity.

The attorneys general maintained that Bostock doesn’t extend to Title IX because that case was explicitly limited to the context of employment discrimination under Title VII.

US Solicitor General Elizabeth Prelogar in emergency requests July 22 told the justices the district court shouldn’t have blocked all of its Title IX rules when the states claimed they’d be injured only by provisions that force schools to allow transgender students to use the bathrooms and locker rooms that are consistent with their gender identity. The rule also requires staff and students to use a transgender student’s preferred pronouns.

The states found no additional harms to justify an injunction against the regulation provision that defines sex under Title IX, which includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity, she said.

But the states said this argument is a stretch and that the rule adopted a broad definition of sex-based harassment in the education context.

“The department also has not shown it would have enacted the rule without its unlawful provisions,” the filing said.

Prelogar had also filed an emergency request to partially stay a similar ruling from the Western District of Louisiana. The attorneys general of Indiana, Ohio, and Virginia have not yet filed their response.

The case is Cardona v. Tennessee, U.S., 24A79, 7/26/24.