Moms for Liberty (MFL) and Young America’s Foundation, along with four states, have filed a federal lawsuit against the Biden administration’s new Title IX regulations to protect transgender students, which include replacing the use of biological sex with the term “gender identity.”
The 1,085-page complaint, with dozens of attached exhibits, was filed on May 14 in a federal court in Kansas. Several members of Female Athletes United (FAU), a mother and daughter, are also parties to the suit.
The complaint also names the Department of Justice as a defendant for enforcing President Joe Biden’s directives and comes a little over two months before the Aug. 1 date when major new changes to Title IX adopted by the U.S. Department of Education under the direction of the Biden administration are to go into effect.
In announcing the lawsuit, MFL co-founders Tiffany Justice and Tina Descovich said in a statement that they were sending a message to President Biden that “children GO to public school. They do not BELONG to public school.”
“That is something we will never stop fighting to prove, even if it means going toe-to-toe against the heavy-handed ‘gender identity’ mandates from the Biden administration,” they said.
Southeastern Legal Foundation’s Executive Director Kimberly Hermann, a lead attorney in the case, said in a statement that the lawsuit is necessary to restore safety to girls on and off the field. “The Department of Education’s drastic Title IX re-write guts parental rights, forces our children to affirm the idea that kids can change their gender, and threatens punishment if they dare speak up for their physical safety in a bathroom or locker room,” she said.
Disputed Changes
The 1972-enacted Title IX—the federal mandate that prohibits sex-based discrimination by any school that receives funding from the federal government—has gone through a drastic overhaul under President Biden. A final outline of the changes was posted on April 29 on the National Register and given the title of “Final Rule” by the U.S. Department of Education’s Office of Civil Rights.In addition to redefining the two biological genders and outlawing “gender stereotypes,” it expands federal protection of LGBT students to be in a locker room or bathroom based on gender identity rather than their biological sex.
It mandates that schools provide abortion services, “even though abortion,” the MFL lawsuit points out, has nothing to do with Title IX.
It expands the definition of sexual harassment to include misgendering a transgender person or not using their preferred pronouns.
It also sets new punishments for students who refuse to comply with the gender ideology mandates through a campus grievance process, which the MFL lawsuit says “ is akin to “kangaroo courts.”
Ms. Hermann said the lawsuit challenges the Biden administration’s authority to “unilaterally change” the definition of sex with its “Final Rule.”
She said, “That power belongs only to Congress. Policies and rules do not replace laws or the legislative process that creates them.”
That is also outlined in the lawsuit, which charges the administration’s Final Rule as an attempt to settle matters “subject to profound debate without clear authorization.”
The charge echoes a key issue that was recurrently raised during the GOP presidential primary campaigns—that a fourth branch of government led by administrators and unelected administrators was taking over the legislative process.
The lawsuit also focuses on the threat of losing federal funding for non-compliance with the new changes—a violation of the Spending Clause, it contends.
Contained in Article 8 of the U.S. Constitution, the clause has been historically used as a quasi-Title IX contract between states and federal government, the lawsuit explains, “in exchange for providing equal opportunities for women and girls.”
“Instead of focusing on the true mission of Title IX, which is to protect women and girls from discrimination in education and to protect and promote women’s and girls’ sports, the Defendants attempt to rewrite it entirely to institutionalize the left-wing fad of transgender ideology in our K-12 system and tie school funding to it.”
Intent of Title IX
In 2023, the U.S. Supreme Court ruled that students have a right to monetary damages from schools for failing to enforce Title IX rules.The MFL lawsuit argues that President Biden’s Title IX changes are unlawful and actually create the very discrimination the federal law was created to ban. It outlines its history—enacted under President Richard Nixon’s administration as a “statutory guarantee that women and girls have equal access to education programs and activities—especially athletic programs.”
The lawsuit asserts that the law “always recognized that providing students with sex-separated facilities, such as restrooms, locker rooms, and overnight sleeping accommodations, ensures the dignity and privacy for both boys and girls and is not ‘discrimination.’”
It also cited court rulings preserving its intent to provide women with equal access, including the 2020 Supreme Court ruling Bostock v. Clayton County, in which the court ruled that “sex refers to the biological distinctions between males and females.”
Female Athletes Against Biden Changes
The suit includes stories of several high-achieving female student-athletes who have either received college scholarships for their playing ability or set records in their fields. They are identified as FAU members. One of them is a 17-year-old senior who recently received a full scholarship to play volleyball next fall at MidAmerica Nazarene University in Kansas. Another is an 18-year-old high school track athlete who is now attending college on a full athletic scholarship. Still others are younger students heading down the same path.The lawsuit specifies that all of them have indicated they would not be comfortable competing with males and that the younger athletes are concerned they might lose scholarship opportunities to transgender females.
“These members think that competing against males in their sports would be unfair and would deter and discourage them from pursuing sports and from enjoying the value of participating in competitive sports, the lawsuit states. ”Some of the members identified above also fear being injured if they have to compete against males who are typically bigger, faster, and stronger.”
The lawsuit also includes the story of a 13-year old middle school girl in Oklahoma, who is a plaintiff in the case.
According to the lawsuit, the girl, who is identified as “K.R.” expressed that she was “intensely uncomfortable, embarrassed, and unsafe using the restroom at school” because the school allowed trans-female students to use it, and, as a result, she often encountered boys in the girls’ bathroom. She was told that her only option was to not use the bathroom.
“ So, from around 7:00 a.m. when she left home to around 4:00 p.m. when she returned home, K.R. frequently would not use the restroom at school at all,” the lawsuit alleged.
Oklahoma has since passed a state law requiring every multiple occupancy restroom in K-12 public schools to be designated by sex.
The MFL lawsuit follows a lawsuit filed on May 9 by 22 Republican-led states against Biden’s Final Rule changes to Title IX. They are Alabama, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia.
The states that are party to the MFL lawsuit are Alaska, Kansas, Utah, and Wyoming. Several of the states say they will not comply with Biden’s new Title IX when it goes into effect.
