Federal appeals court blocks Biden's Title IX changes that would force schools to let men use women's bathrooms

A federal appeals court has ruled against the Biden administration’s initial Title IX guidance that was announced in 2021. The controversial guidance sought to include sexual orientation and gender identity under Title IX's protections and penalize schools that bar transgender-identifying students from using the bathrooms or participating in sports based on their gender identity. In other words, the provisions in Title IX that allowed for protections and set-asides on the basis of biological sex were made to be extended to gender identity, as well.

After the Biden administration announced these revised guidelines, 20 Republican-led states challenged the decision by filing a lawsuit against the Department of Education, the Department of Justice, and the Equal Employment Opportunity Commission in federal court. Most of these states had pre-existing bans that prevented transgender-identifying athletes from competing on school teams that align with their gender identity rather than their biological sex. The 6th Circuit Court of Appeals upheld a preliminary injunction against the guidance on June 14, siding with the 20 states that brought the case forward.

The states argued that the guidance violated First Amendment rights and that the federal government was interfering with state laws by threatening to withhold education funding from schools that were found in breach of the guidance. The three-judge panel concluded that the Department of Education likely violated the Administrative Procedures Act by not adhering to the required notice-and-comment rules when issuing the guidance.

The court’s decision is yet another setback for the Biden administration’s efforts to extend Title IX protections to cover sexual orientation and gender identity. Earlier this month, district court judge Terry A. Doughty placed a preliminary injunction on the enforcement of these rules in four states: Louisiana, Mississippi, Montana, and Idaho. Doughty agreed that the expansion of Title IX far suppressed its original intent.

“Title IX was enacted for the protection of the discrimination of biological females,” Judge Doughty wrote. “However, the final rule may likely cause biological females more discrimination than they had before Title IX was enacted.” A federal judge in Texas ruled similarly and blocked the guidance from being enforced in the state. US District Judge for the Northern District of Texas, Reed O’Connor found that the Department of Education exceeded its authority with its initial Title IX guidance.

“Nothing in the statute expressly prohibits discrimination based on gender identity or other unexpressed grounds,” Judge O’Connor determined. “And where Title IX allows for differentiation based on sex due to biological differences — such as intimate facilities and athletic teams — recipients may treat persons in accordance with their biological sex without regard to subjective gender identity.”

“Title IX explicitly appreciates the innate biological variation between men and women that occasionally warrants differentiation — and even separation — to preserve educational opportunities and to promote respect for both sexes,” he wrote.