Enforcement of a Title IX rule expanding discrimination protections to include sexual orientation and gender identity has been blocked temporarily in four states and a patchwork of places elsewhere by a federal judge in Kansas.
U.S. District Judge John Broomes suggested in his decision to issue a preliminary injunction Tuesday that the Biden administration must now consider whether forcing compliance remains “worth the effort.”
Broomes' decision was the third against the rule from a federal judge in less than three weeks but more sweeping than the others.
Last month, a federal judge in Kentucky temporarily halted the rule from taking effect in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia, while a federal judge in Louisiana did the same for Louisiana, Mississippi, Montana and Idaho.
Meantime, Florida has joined Alabama, Georgia, South Carolina and four organizations to seek a preliminary injunction to stop enforcement of the change. The lawsuit, filed in April in the federal Northern District of Alabama, names as defendants the U.S. Department of Education and Education Secretary Miguel Cardona. A hearing was held Monday but no ruling had been issued as of Wednesday night.
Broomes' order applies in Alaska, Kansas, Utah and Wyoming, which sued over the new rule. It also applies to a Stillwater, Oklahoma, middle school that has a student suing over the rule and to members of three groups backing Republican efforts nationwide to roll back LGBTQ+ rights. All of them are involved in one lawsuit.
Broomes directed the three groups — Moms for Liberty, Young America’s Foundation and Female Athletes United — to file a list of schools in which their members' children are students so that their schools also do not comply with the rule. Kansas Attorney General Kris Kobach, a Republican who argued the states' case before Broomes last month, said that could be thousands of schools.
The Biden administration rule is set to take effect in August under the Title IX civil rights law passed in 1972, barring sex discrimination in education. Broomes' order is to remain in effect through a trial of the lawsuit in Kansas, though the judge concluded that the states and three groups are likely to win.
Broomes, an appointee of former President Donald Trump, wrote that Congress, when developing Title IX, was concerned about the unequal treatment “between men and women” for admissions opportunities, scholarships and sports.
“The legislative history supports a finding that the term ‘sex’ referred to biological sex,” he continued. “… One of the principal purposes of the statute was to root out discrimination against women in education.”
He also wrote that the Biden administration officials made little effort to dispute that the term ‘sex’ in Title IX means “biological sex.”
“Rather, defendants argue that this makes no difference because discrimination on the basis of gender identity is discrimination on the basis of biological sex.”
Republicans have argued that the rule represents a ruse by the Biden administration to allow transgender females to play on girls' and women's sports teams, something banned or restricted in Kansas and at least 24 other states, including Florida.
The Biden administration has said it does not apply to athletics. Opponents of the rule have also framed the issue as protecting women and girls' privacy and safety in bathrooms and locker rooms.
“Gender ideology does not belong in public schools and we are glad the courts made the correct call to support parental rights,” Moms for Liberty co-founders Tina Descovich and Tiffany Justice said in a statement.
LGBTQ+ youth, their parents, health care providers and others say restrictions on transgender youth harms their mental health and makes an often marginalized group even more vulnerable. The Department of Education has previously stood by its rule and President Joe Biden has promised to protect LGBTQ+ rights.
The Department of Education did not immediately respond to an email seeking comment Tuesday.
The rule would protect LGBTQ+ students by expanding the definition of sexual harassment at schools and colleges and adding safeguards for victims.
Like the judges in the two other decisions, Broomes called the rule arbitrary and concluded that the Department of Education and Cardona exceeded the authority granted by Title IX.
He also concluded that the rule violated the free speech and religious freedom rights of parents and students who reject transgender students' gender identities and want to espouse those views at school or elsewhere in public.
Broomes said his 47-page order leaves it to the Biden administration “to determine in the first instance whether continued enforcement in compliance with this decision is worth the effort.”
Broomes also said nontransgender students' privacy and safety could be harmed by the rule. He cited the statement of the Oklahoma middle school student that “on some occasions” cisgender boys used a girls' bathroom “because they knew they could get away with it.”
“It is not hard to imagine that, under the Final Rule, an industrious older teenage boy may simply claim to identify as female to gain access to the girls' showers, dressing rooms or locker rooms, so that he can observe female peers disrobe and shower,” Broomes wrote.
Transgender advocates and research have found that to be a largely false narrative by anti-trans activists about gender identity and how schools accommodate students with gender dysphoria.
Information from News Service of Florida was used in this report.
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