A divided appeals court has blocked a new federal rule about sex-based discrimination in education programs while a legal battle continues to play out, giving a win to Florida and three other states.
A panel of the 11th U.S. Circuit Court of Appeals last week granted a request from the states and other plaintiffs for an injunction against the rule, which deals with Title IX, a landmark 1972 law that bars discrimination in education programs based on sex. The injunction will remain in place while the appeals court considers the plaintiffs’ challenge to a decision by a federal district judge.
The rule has drawn opposition from Republican-led states across the country, largely because it would extend Title IX regulations to apply to discrimination based on gender identity.
The panel’s 2-1 opinion Thursday cited other decisions that have blocked the rule, including a U.S. Supreme Court decision this month that kept in place preliminary injunctions approved by two other appeals courts. Along with Florida, the plaintiffs in the 11th Circuit case include Alabama, Georgia and South Carolina.
“In granting injunctive relief, we maintain the status quo along with every other federal court (including the Supreme Court) to rule on this issue,” said Thursday’s majority opinion shared by Judges Elizabeth Branch and Robert Luck.
Florida, Georgia and South Carolina and other plaintiffs went to the Atlanta-based appeals court on July 30, hours after U.S. District Judge Annemarie Carney Axon issued a 122-page decision that rejected their request for a preliminary injunction against the Title IX rule.
The appeals court quickly issued what is known as an “administrative injunction” that kept the rule on hold. Its opinion Thursday means the rule will be blocked at least until the court can decide on the underlying appeal of Axon’s decision.
The U.S. Department of Education issued the rule in April after numerous moves by Florida and other Republican-led states in recent years to pass laws and regulations about transgender people. Schools, colleges and universities that receive federal money are required to comply with Title IX.
Florida and other states have contended the rule could force them to do such things as allow transgender students to use bathrooms that don’t match their sex assigned at birth. In the legal challenges, they have alleged the federal government violated a law known as the Administrative Procedure Act.
Axon, an Alabama federal judge nominated to the bench by former President Donald Trump, said in her decision last month that the plaintiffs had not provided adequate arguments to obtain a preliminary injunction.
“Plaintiffs must, among other things, establish a substantial likelihood of success on the claims advanced in their complaint to obtain a preliminary injunction from this court,” Axon wrote. “They failed to sustain that burden.”
But the appeals-court panel disputed that conclusion, in part pointing to a 2022 11th Circuit decision that upheld a St. Johns County School Board policy that prevented a transgender male student, Drew Adams, from using boys’ bathrooms at a high school.
“Given our holding in Adams that ‘sex’ in Title IX ‘unambiguously’ refers to ‘biological sex’ and not ‘gender identity,’ it is certainly highly likely that the department’s new regulation defining discrimination ‘on the basis of sex’ to include ‘gender identity’ is contrary to law and ‘in excess of statutory . . . authority,’” the appeals-court opinion said, also partially quoting a U.S. Supreme Court precedent.
But Judge Charles Wilson dissented, writing that the plaintiffs had not shown an “irreparable injury” from the new rule.
“As an initial matter, they make only a conclusory statement — both before the district court and here — that they have suffered sovereign and constitutional harms, asserting without explanation that the rule conflicts with state statutes and requires schools to adopt harassment policies that chill student speech,” Wilson wrote. “This is insufficient to meet their heavy burden of ‘clearly establishing’ an imminent and irreparable injury.”
The lawsuit names as defendants the U.S. Department of Education and Education Secretary Miguel Cardona. Along with the states, other plaintiffs are four groups: the Independent Women’s Law Center, the Independent Women’s Network, Parents Defending Education and Speech First. The 11th Circuit hears cases from Florida, Alabama and Georgia.
