A federal judge has temporarily blocked the Biden administration’s Title IX guidance on gender identity and sexual orientation.
U.S. District Judge Charles Atchley in the Eastern District of Tennessee ruled last week that the administration’s guidance misquoted the Supreme Court to equate sex and gender identity, likely violating federal law.
The administration’s guidance effectively forced states to allow biological males to use girls restrooms, forbade states from barring males from participating in female sports, and forced employers to use employees’ preferred pronouns, all at the risk of losing federal funding, according to the state attorneys general who sued the administration. The guidance was released last year by the Education Department and the Equal Employment Opportunity Commission.
“As it currently stands, plaintiffs must choose between the threat of legal consequences — enforcement action, civil penalties, and the withholding of federal funding — or altering their state laws to ensure compliance with the guidance and avoid such adverse action,” Atchley, a Trump appointee, wrote in his preliminary injunction.
The Biden administration inappropriately invoked the Supreme Court’s 2020 ruling in Bostock v. Clayton County, a case that dealt with transgender employment, the judge said.
In the Bostock majority opinion, Justice Neil Gorsuch included a caveat about the scope of the court’s decision.
“They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” Gorsuch wrote.
Atchley wrote that, “in applying Bostock to Title IX, the Department overlooked the caveats expressly recognized by the Supreme Court and created new law.”
The judge cited Tennessee’s laws, which organize school sports teams by “the student’s sex at the time of the student’s birth” and allow students and employees to sue a school that deliberately allows people of the opposite sex use a single-sex bathroom.
Atchley declared that at least 10 of the 20 states have demonstrated that there is a concrete and imminent threat to their ability to enforce their state laws. That threat is “fairly traceable” back to the guidelines, the judge said.