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≡ COURT REPORT ≡
“Put simply, there is nothing in the text or statutory design of Title IX to suggest that discrimination ‘on the basis of sex’ means anything other than it has since Title IX’s inception – that recipients of federal funds under Title IX may not treat a person worse than another similarly-situated individual on the basis of the person’s sex, i.e., male or female.”
That’s from a 15-page order from the U.S. District Court for the Eastern District of Kentucky, released Thursday, striking down a U.S. Department of Education rule which expanded Title IX of the Educational Amendments of 1972 to allow “gender identity” as the basis for discrimination claims.
Granting a motion for summary judgement from the states of Tennessee, Kentucky, Indiana, Virginia West Virginia and others, Judge Danny Reeves further wrote that the entire rule submitted by the Department of Education was invalid and unconstitutional (citations omitted):
● “As this Court and others have explained, expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head. While Title IX sought to level the playing field between men and women, it is rife with exceptions that allow males and females to be separated based on the enduring physical differences between the sexes.”
● “The Final Rule would leave 20 U.S.C. §§ 1681(a)(1)-(9) and 1686 intact while adding regulations that mandate access to showers, locker rooms, and sexual education classes, among others, consistent with an individual’s gender identity.
“But this approach simply does not make sense. Confirming the arbitrary nature of these new regulations, the Department has offered no rational explanation for the stark inconsistencies that will result if the Final Rule is allowed to go forward.”
● “The Court remains persuaded that the Final Rule is arbitrary and capricious. The Department does not provide a reasoned explanation for departing from its longstanding interpretation of Title IX.
“Although it relies primarily on [Bostock vs. Clayton County], the Supreme Court was clear that the decision was limited to the context of Title VII and did not purport to address ‘bathrooms, locker rooms, or anything else of the kind.’ Given the Court’s express disclaimer and the striking differences between Title VII and Title IX, Bostock is a very shaky place for the Department to hang its hat.”
● “[T]he new regulations say that recipients cannot separate the sexes (thus inflicting more than de minimis harm) for purposes of other ‘living facilities’ such as bathrooms, toilets, or showers.
“In support, the Department cites ‘case law, research, testimony and comments from stakeholders, and evidence from schools’ many years of practical experience’ indicating ‘that preventing a person from participating in a program or accessing a sex-separate facility consistent with their gender identity subjects them to harm.’
“Assuming this is true, doesn’t it also subject such persons to harm when they are prevented from participating in the social fraternity or sorority consistent with their gender identity? Or when they are prevented from residing in a living facility consistent with their gender identity? It seems clear that the answer is ‘yes,’ which indicates that Title IX does not encompass the issue of gender identity at all.”
The District Court holding can be appealed, of course, but with the Biden Administration in its waning days, the decision is unlikely to be disturbed. This decision followed the withdrawal in late December of Education Department regulations proposed in 2023 that would have used a new Title IX rule to force the inclusion of transgender men on women’s athletics teams:
“The Department recognizes that there are multiple pending lawsuits related to the application of Title IX in the context of gender identity, including lawsuits related to Title IX’s application to athletic eligibility criteria in a variety of factual contexts.
“In light of the comments received and those various pending court cases, the Department has determined not to regulate on this issue at this time. Therefore, the Department hereby withdraws the Athletics NPRM and terminates this rulemaking proceeding.”
The incoming Trump Administration has indicated no interest in either set of proposed rules.
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