Category: Title IX

Arbitrary and Capricious: Federal Judge Rejects and Ridicules Dept. of Education’s Title IX Rule

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June 19, 2024

In April, the Department of Education issued its long-awaited Title IX Rule. In response, nine separate lawsuits were filed, seeking to block the new regulation.

On June 17, Judge Danny Reeves issued a preliminary injunction for the states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. Concluding that “the Department of Education seeks to derail deeply rooted law with a Final Rule,” the judge ordered:

1. The motions for a preliminary injunction/stay filed by Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia [Record No. 19] and Christian Educators Association International and A.C. [Record No. 63] are GRANTED.
2. The United States Department of Education and Miguel Cardona, Secretary of the U.S. Department of Education, along with their secretaries, directors, administrators, and employees, are ENJOINED and RESTRAINED from implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33474 (Apr. 29, 2024), which is scheduled to take effect on August 1, 2024.

Using the words “arbitrary and capricious” eight times, Judge Reeves did not mince words in his 93-page decision, which addressed the subjective definitions of “gender identity,” women’s sports, student privacy and safety, free speech, parental rights, and more.

These are highlights from his strongly worded opinion:

“This case concerns an attempt by the executive branch to dramatically alter the purpose and meaning of Title IX through rulemaking… the new rule contravenes the plain text of Title IX by redefining ‘sex’ to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking. If the new rule is allowed to take effect on August 1, 2024, all plaintiffs will suffer immediate and irreparable harm.” – Page 1

“But then came the administrative state, lacking any real power to rewrite a law that Congress duly passed, with its bureaucratic cudgel.” – Page 8

“The Department declined to provide a specific definition of “gender identity,” but understands the term to “describe an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.” – Page 10

Judge Reeves’ decision highlights the plight of a 15-year-old West Virginia girl, A.C., who reportedly “feels uncomfortable dressing and undressing in the presence of biological males.” Referring to transgender athlete Becky Pepper-Jackson, a biological male, the judge wrote, “A.C. asserts that it is apparent that B.P.J.’s status as a biological male gives B.P.J. an advantage over A.C. and other female athletes.” – Page 14

“an agency has no authority to promulgate a regulation that ‘undoes the unambiguous language of the statute.’” – Page 16

“The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended….For example, the new rules provide that recipients may separate students for purposes of fraternities and sororities, but not for purposes of utilizing bathrooms.” – Page 25

“The likely consequences of the Final Rule are virtually limitless…. the Final Rule creates myriad inconsistencies with Title IX’s text and its longstanding regulations.” – Page 27

“The First Amendment to the United States Constitution stands as a sentry over one of the Nation’s most indispensable freedoms through a proclamation clear and uncompromising: “Congress shall make no law . . . abridging the freedom of speech, . . . .”  – Page 32

“It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto.” – Page 46

“The Department understands gender identity to describe an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.” Id. But the Department’s response offers no guidance whatsoever. Arguably worse, it suggests that this term of vital importance can be subjectively defined by each and every individual based entirely upon his or her own internal sense of self.” – Page 50

“Further, the Final Rule authorizes, if not encourages, arbitrary and discriminatory enforcement pursuant to definitions of harassment that are almost entirely fact-dependent.” – Page 55

“the Final Rule’s text is vague and overbroad in a way that impermissibly chills protected speech” – Page 56

“The plaintiff-States claim that the Department has also failed to account for the impact its Final Rule will have on the constitutional right of parents to influence their children’s education. A longstanding right recognized by the Supreme Court is the right for parents to raise their own children as they see fit.” – Page 63

“But the Final Rule then specifies that schools may no longer apply the regulations’ allowance for sex-separation against males who identify as females or females who identify as males. Id. It seems obvious that the Department simply failed to consider these contradictory aspects when promulgating the Final Rule.” – Page 63

“Indeed, the Final Rule’s provisions seemingly bind administrators to treat such children “consistent with [their] gender ident[ies]” on school grounds, even if that conflicts with parental preferences. Id. at 41571. Therefore, school personnel would be forced to improperly insert themselves into constitutionally protected family affairs not only to act when gender discrimination is claimed but to “prevent its recurrence and remedy its effects.” – Page 64

“it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.” – Page 65

“The Department asserts that there is not ‘a ‘long-standing construction’ of the term ‘sex’ in Title IX to mean ‘biological sex.’  See 87 Fed. Reg. at 41537. But this argument is severely undermined by the series of congressional amendments and agency regulations since the statute’s enactment that consistently have construed ‘sex’ as a male-female binary. Indeed, past regulations from the Department are direct evidence that a definition has been in place.” – Page 67

“Nonetheless, despite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity. This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.” – Page 75

“Ultimately, the Department’s failure to provide any concrete, contradictory data to the concerns raised by the States, parents, and educators renders it is difficult to fathom how it determined that “the benefits” of the new regulations ‘far outweigh [their] estimated costs.’… This miscalculation is underscored by the fact that officials seemingly failed to seriously account for the possibility that abolishing sex-separated facilities would likely increase the incidence of crime and deter large swaths of the public from using public accommodations altogether.” – Page 75

“It is an inescapable conclusion based on the foregoing discussion that the Department has effectively ignored the concerns of parents, teachers, and students who believe that the Final Rule endangers basic privacy and safety interests…. Rather than address the evidence provided by the plaintiff-States and others during the commenting period, the Department throws its figurative hands in the air and says, ‘too bad.’” – Page 76

“The Department predicts that recipients of federal funds will see a ten percent increase in Title IX complaints and investigations under the Final Rule.” – Page 81

“the plaintiff-States contend that the Final Rule would cause their citizens to endure a variety of irremediable harms including violations of their bodily privacy by students of the opposite sex.” – Page 87

“This regulation is arbitrary in the truest sense of the word. As explained above, the Department has failed to demonstrate why recipients are allowed to inflict more than de minimis harm in some situations but not in others when there is no meaningful difference (e.g., living facilities versus showers).” – Page 90

“Each subsection in which these provisions appear contains a severability clause that provides: ‘If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby.’ 34 C.F.R. §§ 106.9; 106.16; 106.48. The severability clause has little impact on the Court’s analysis because the impermissible definition of ‘discrimination on the basis of sex’ in 34 C.F.R. § 106.10 permeates the remaining regulations.” – Page 90

“the Department of Education seeks to derail deeply rooted law with a Final Rule that is set to go into effect on August 1, 2024. At bottom, the Department would turn Title IX on its head by redefining “sex” to include “gender identity.” But “sex” and “gender identity” do not mean the same thing. The Department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.” – Page 91

“A rule that compels speech and engages in such viewpoint discrimination is impermissible.” – Page 92

“Notably, the Department does not provide a sufficient explanation for leaving regulations in place that conflict with the new gender-identity mandate, nor does it meaningfully respond to commentors’ concerns regarding risks posed to student and faculty safety.” – Page 92