Federal judge blocks Biden admin's Title IX rules from going forward in Texas, says 'sex' used to be 'unambiguously binary'

"In 1972, 'sex' carried an unambiguously binary meaning."

Hannah Nightingale Washington DC

Texas Attorney General Ken Paxton announced on Tuesday that a federal court sided with Texas in it’s case against the Biden administration’s guidance on Title IX that interpreted "sex" as meaning "sexual orientation" and "gender identity," and would have schools risk their federal funding if they kept facilities and activities like sports separated by biological sex.

Paxton brought the lawsuit against the United States Department of Education and its secretary Miguel Cardona, and the Department of Justice and Attorney General Merrick Garland in June of 2023 asking that the court vacate the June 2021 guidance.

Paxton said that the new rules are "not in accordance with law and are in excess of statutory authority because they rely upon the interpretation of Title VII described in Bostock and apply it to Title IX," and that the guidance documents are "substantive or legislative rules that required notice-and-comment rulemaking."

In the 112-page decision, US District Judge for the North District of Texas Reed O’Connor wrote, "Because of this prohibition on sex discrimination, recipients of federal funds generally cannot discriminate based on someone’s sex. However, nothing in the statute expressly prohibits discrimination based on gender identity or other unexpressed grounds. 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."

O’Connor stated that "a review of contemporary dictionaries does not support" the defendants’ arguments that the phrase "sex" includes "gender identity." He added, "In 1972, 'sex' carried an unambiguously binary meaning."

"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," the judge later added. 

"Rather than promote the equal opportunity, dignity, and respect that Title IX demands for both biological sexes, Defendants’ Guidance Documents do the opposite in an effort to advance an agenda wholly divorced from the text, structure, and contemporary context of Title IX."

"Not to mention, recipients of Title IX funding—including Texas schools—will face an impossible choice: revise policies in compliance with the Guidance Documents but in contravention of state law153 or face the loss of substantial funding. Thus, to allow Defendants’ unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress. That is not how our democratic system functions," O'Connor wrote in his conclusion.

Paxton said in response to the ruling, "Joe Biden’s unlawful effort to weaponize Title IX for his extremist agenda has been stopped in its tracks. Threatening to withhold education funding by forcing states to accept ‘transgender’ policies that put women in danger was plainly illegal. Texas has prevailed on behalf of the entire Nation."

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