The Biden administration’s attempt to expand protections for LGBTQ+ students under Title IX was stymied June 17 when a federal judge in Kentucky temporarily blocked the new rule in six states.
In a 93-page opinion, Judge Danny C. Reeves of the Eastern District of Kentucky ruled that the Department of Education had gone too far in expanding the definition of “sex” to include gender identity. Reeves said the Department of Education “fails to provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex and provided virtually no answers to many of the difficult questions that arose during the public comment phase.”
Reeves, an appointee of former President George W. Bush, wrote in his ruling that the plaintiffs—the six GOP-led states, an association of Christian educators and a 15-year-old girl—will “suffer immediate and irreparable harm” if the rule is allowed to take effect.
“As [the plaintiffs] correctly argue, the new rule contravenes the plain text of Title IX by redefining ‘sex’ to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking,” Reeves wrote.
Reeves called the Biden plan “arbitrary in the truest sense of the word” and granted a preliminary injunction blocking it in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia. Reeves’ ruling follows the June 13 ruling by Chief Judge Terry Doughty in the Western District Court of Louisiana who issued a preliminary injunction blocking the final rule from taking effect in Louisiana, Mississippi, Montana and Idaho until a final decision has been issued by the judge on a lawsuit challenging the validity of the final rule.
Reeves dismissed the Department of Education’s basic tenet: that the Supreme Court’s 2020 decision in Bostock v. Clayton County — which found that gay and transgender workers are protected from workplace discrimination under the Civil Rights Act — justified extending those protections to students under Title IX.
Title IX, which was passed in 1972, is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funding. Biden’s expansion of those regulations broadened the scope of the law to prohibit unequal treatment of pregnant students and discrimination based on sexual orientation and gender identity.
In April, the finalized federal rules officially added “gender identity” to the list of protections from sex-based discrimination for the first time. Title IX prohibits discrimination based on sex at any institution that receives federal funding.
“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” U.S. Secretary of Education Miguel Cardona previously said in a statement on the rule change. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming and respect their rights.”
Schools could violate Title IX if a transgender person isn’t allowed to use the bathroom aligned with their gender identity or if they are not referred to by their chosen pronoun, according to senior administration officials.
This change directly conflicts with several state laws that ban transgender students from using facilities — like bathrooms or locker rooms — that align with their gender identity and restrict the use of chosen pronouns and names, either by requiring parental permission or by allowing teachers to not use the preferred pronouns and name.
Reeves wrote that the Biden change was contradictory and allowed individuals to pick and choose what rules to follow — particularly as the rule side-stepped transgender athletes and was murky on accommodations. Reeves wrote, “In essence, the final rule accommodates a reality in which student housing remains sex-segregated while students are free to choose the bathrooms and locker rooms they use based on gender identity.”
Reeves also rejected the Biden changes on First Amendment grounds in ways that have previously been used in other cases like the Supreme Court ruling in Fulton v. City of Philadelphia. Reeves suggested that teachers who refuse to use a student’s preferred pronouns could face accusations of sexual harassment under the Biden rule, even if using pronouns “consistent with a student’s purported gender identity” violated their religious or moral beliefs.
The Biden amendment to Title IX brought swift response from attorney generals in Republican-led states and outrage from religious rights groups and other conservatives, all of whom argue that the protections for transgender students such as access to locker rooms and bathrooms matching their gender identity come at the expense of others’ privacy and conflict with state laws.
The June 17 ruling in Kentucky was celebrated by the state’s Republican Attorney General Russell Coleman, who said the challenge brought against the new rule is part of a larger effort “to protect our women and girls from harm.”
“We’re grateful for the court’s ruling, and we will continue to fight the Biden Administration’s attempts to rip away protections to advance its political agenda,” Coleman said in a statement.
“We fought hard to protect our constitutional separation of powers, which ensures that the people through their elected representatives are the only authority that can make new laws,” said Tennessee Attorney General Jonathan Skrmetti.
A Department of Education spokesperson said in an email to media, “The Department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The Department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”
Lawsuits challenging the rule in more than a dozen other Republican-controlled states are still pending. The ACLU has recorded more than 500 laws targeting the LGBTQ+ community in 2023, many of which were centered on school activity.
While Title IX is a federal law, individual administrations can choose how to enforce its regulations. Then schools must follow that plan as a condition of receiving funding from the government.
The Biden administration’s changes to Title IX are slated to take effect nationwide on Aug. 1, except in states where they have been blocked.