The U.S. Supreme Court declined on Friday to let President Joe Biden’s administration enforce a key part of a new rule protecting LGBTQ2 students from discrimination in schools and colleges based on gender identity in 10 Republican-led states that had challenged it.
The justices denied the administration’s request to partially lift lower court injunctions that had blocked the entirety of the rule expanding protections under Title IX, a law that bars sex discrimination in federally funded education programs, while litigation continues. The lower court decisions had prevented the U.S. Education Department from enforcing the new rule, announced in April and set to take effect on Aug. 1, in Tennessee, Louisiana and eight other states.
The administration had sought to restore a key provision of clarifying that discrimination “on the basis of sex” encompasses sexual orientation and gender identity, as well as the rule’s numerous other provisions that do not address gender identity.
Biden’s administration had asked the Supreme Court to intervene on an emergency basis in a lawsuit by Louisiana, Mississippi, Montana, Idaho, and numerous Louisiana school boards, and another lawsuit by Tennessee, Kentucky, Ohio, Indiana, Virginia, West Virginia and an association of Christian educators.
“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” U.S. Assistant Secretary for Civil Rights Catherine Lhamon said when the rule was announced. “We look forward to working with schools, students and families to prevent and eliminate sex discrimination.”
Louisiana Attorney General Liz Murrill called the rule a federal overreach that would eviscerate Title IX, and criticized what she called Biden’s “extreme gender ideology.”
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“This is all for a political agenda, ignoring significant safety concerns for young women students in pre-schools, elementary schools, middle schools, high schools, colleges and universities across Louisiana and the entire country,” Murrill said of the federal rule when she announced the state’s lawsuit.
“These schools now have to change the way they behave and the way they speak, and whether they can have private spaces for little girls or women. It is enormously invasive, and it is much more than a suggestion; it is a mandate that well exceeds their statutory authority,” Murrill added.
The states and the other plaintiffs had argued that the rule would force schools to allow transgender students to use restrooms and locker rooms, and faculty to use transgender students’ pronouns, that correspond to their gender identities.
The lawsuits are two among several that have successfully blocked the law in 22 states – nearly all Republican-governed – arguing that the Democratic president’s administration is unlawfully rewriting a law designed more than a half century ago to protect women from discrimination in education.
On July 30, the administration scored a win when a federal judge in Alabama refused to block the rule in that state, as well as Florida, Georgia and South Carolina. That ruling was temporarily halted the next day by the Atlanta-based 11th U.S. Circuit Court of Appeals.
'Straightforward application'
The Biden administration rule makes numerous changes to regulations combating sex discrimination under Title IX of the Education Amendments of 1972, including by covering LGBTQ2 individuals as well as strengthening protections for pregnant students, parents and guardians.
The administration said protecting LGBTQ2 students under Title IX is a “straightforward application” of the Supreme Court’s landmark 2020 ruling that a similar law known as Title VII barring workplace discrimination protects gay and transgender employees.
U.S. Judge Terry Doughty in Monroe, Louisiana and U.S. Judge Danny Reeves in Lexington, Kentucky both concluded that Title IX’s reference to sex relates only to “biological” males and females, and that the Supreme Court’s 2020 ruling did not apply in this context.
The administration has said that most of the rule has nothing to do with gender identity and should be allowed to take effect, but agreed that two key provisions – one implicating restrooms and locker rooms and the other potentially implicating the use of pronouns – could remain blocked while the appeals play out in court.
The administration also said that the rule does not change “existing requirements governing sex separation in athletics,” noting that the issue is the subject of a “separate rulemaking.”
The New Orleans-based 5th U.S. Circuit Court of Appeals and the Cincinnati-based 6th U.S. Circuit Court of Appeals denied requests to partially enforce the rule, prompting the administration to seek the Supreme Court’s intervention.
In June, the Supreme Court agreed to hear another case from Tennessee, involving a Republican-backed ban on gender-affirming medical care for transgender minors. The court will hear the case in its next term, which begins in October.