A federal appeals court on Oct. 30 weighed whether to reinstate elements of the Biden administration’s new Title IX regulation that don’t address gender identity—part of a larger battle over the rule that could be affected by the results of the presidential election.
Under a series of preliminary rulings by federal appeals courts, the broad new Title IX rule, which among other things protects LGBTQ+ students from discrimination based on sex, is blocked in 26 states and at some schools in others. The U.S. Supreme Court in August denied the Biden administration’s request to unblock provisions that are not related to gender identity, such as protections against pregnancy discrimination.
If former President Donald Trump prevails in next week’s presidential election, he would likely pull the 2024 Title IX regulation once back in office. A victory by Vice President Kamala Harris, the Democratic presidential nominee, would likely mean the regulation stays but the battle over it in the courts would go on.
The Oct. 30 argument in Tennessee v. Cardona before a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, was the first entry in the next round of legal wrangling over the regulation. The challenge—led by Tennessee and joined by Indiana, Kentucky, Ohio, Virginia, and West Virginia—argues that the U.S. Department of Education exceeded its authority with the new regulation and its definition of sex discrimination to include gender identity. Those states argue that the definition is inconsistent with the text of Title IX of the Education Amendments of 1972, which bars discrimination “on the basis of sex” in federally funded schools and colleges.
“Title IX does not require that girls shower and undress with boys, compete against boys with physical advantages, and room with boys on overnight school trips,” Whitney D. Hermandorfer of the Tennessee attorney general’s office, said during the Oct. 30 arguments. “But the rule imposes these and other unprecedented mandates that gut Title IX’s protections for women and privacy.”
In June, a federal district judge in Kentucky issued a preliminary injunction blocking the regulation in its entirety in those states. In a preliminary proceeding, a panel of the 6th Circuit in July refused to lift the injunction, which led to the Biden administration’s emergency application to the Supreme Court seeking relief so the bulk of the regulation could take effect everywhere. (The rule did take effect Aug. 1 for most schools in the 24 states not covered by any injunction.)
Biden administration walks a fine line in its legal argument
The new 6th Circuit proceeding is taking a closer look at the merits of the preliminary injunction.
David L. Peters, a U.S. Department of Justice lawyer, said the district court had “fundamentally erred in issuing a sweeping preliminary injunction” that blocked the entire Title IX regulation. He said the lower court misunderstood a key provision of the new regulation that adds gender identity to the definition of prohibited forms of sex discrimination.
Peters said the provision “makes clear that when a school engages in conduct that everyone agrees discriminates against a student based on their gender identity, such as giving a student detention for being transgender, that would be discrimination on the basis of sex for purposes of Title IX.”
Nonetheless, the Biden administration walks a fine line by arguing that the rest of the rule could go into effect without the definition and two other challenged provisions dealing with gender identity.
That was a view shared by the only member of the new 6th Circuit panel who had also participated in the July decision. Judge Andre B. Mathis, an appointee of President Joe Biden, had dissented from the earlier panel majority’s refusal to block the injunction. On Oct. 30, Mathis did not say anything to suggest he was veering from his view that the injunction against the regulation was too broad because it blocked provisions that were not the focus of the states’ challenge.
Judge Richard A. Griffin, appointed by President George W. Bush, also suggested that the unchallenged provisions might be able to go into effect.
“I’ve looked at” the unchallenged provisions, Griffin said to Hermandorfer. “I don’t see any relationship at all to the challenged provisions.”
But Griffin also asked some tough questions of Peters about whether the language of the Title IX statute supported the Education Department’s expansive interpretation covering gender identity.
Senior Judge Eugene E. Siler Jr., the third member of the panel and a President George H.W. Bush appointee, did not ask many questions during the 45-minute argument.
Jacob P. Warner, a lawyer with the Alliance Defending Freedom, which represents a group of Christian educators who intervened in the case to support the states’ challenge, argued before the panel that Congress did not envision federal courts trying to parse a complicated regulation to decide which provisions to block or not.
“The proper course for this court is to set aside the rule and then perhaps the agency comes back with a better rule,” Warner said.
The U.S. Court of Appeals for the 5th Circuit, in New Orleans, will hold its own arguments on Nov. 4 over a separate injunction that blocks the Title IX regulation in four other states—lead state Louisiana as well as Idaho, Mississippi, and Montana. Other federal appeals courts that have declined to block injunctions against the regulation will also likely weigh further arguments this fall.
