Federal Appeals Court Blocks Title IX Gender Rules in 4 States

A sign outside restrooms in Chattanooga, Tenn., on Jan. 13, 2023. Jackson Elliott/The Epoch Times

A federal appeals court has blocked the federal government’s expanded Title IX protections based on preferred gender identity from taking effect in four states, marking a win for those who argue that the new rules erode protections for women by, for example, allowing biological males who identify as women into women’s locker rooms.

In a 2–1 split decision on Aug. 22, the Atlanta-based 11th U.S. Circuit Court of Appeals granted a motion for an injunction pending appeal, writing in its opinion that the plaintiffs showed a strong chance of winning on the merits, potentially irreparable harm, and that the injunction aligns with the public interest.

“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 judges wrote while blocking enforcement of the revised Title IX rules in Alabama, Georgia, Florida, and South Carolina.

The decision comes in a lawsuit brought by the four states, along with the Independent Women’s Law Center, Parents Defending Education, and Speech First. The plaintiffs challenged a final rule announced by the Department of Education (DOE) on April 19, which expanded the decades-old Title IX law that prohibits sex discrimination in schools to now include sexual orientation and gender identity.

The changes, which stopped short of prohibiting schools from banning male athletes who identify as women from competing against females, were slated to go into effect on Aug. 1. Schools that refused to comply risked losing essential federal funding and the prospect of lawsuits.

The Title IX revamp gave biological males who identify as women the right to use female restrooms and locker rooms and join women-only organizations, while construing “harassment” as including the use of pronouns that conform to one’s biological sex rather than one’s chosen gender identity.

The DOE’s revisions to Title IX sparked a backlash, with more than a dozen states suing to block it and advising schools to ignore the transgender provisions of the new rules.

In opposing the various lawsuits challenging the revamped Title IX provisions, the DOE has argued that expanding the definition of discrimination on the basis of sex to include gender identity is a straightforward application of the U.S. Supreme Court’s decision in a case known as Bostock v. Clayton County.

In that case, the high court ruled 6–3 that firing individuals because of their sexual orientation or transgender status violated prohibitions on discrimination in hiring as stipulated by Title VII, the federal law barring sex-based discrimination in the workplace.

However, the 11th Circuit rejected this reasoning, arguing that the DOE cannot rely on Bostock as a precedent in its defense against the states’ Title IX challenge because the specific text of Title VII “bears minimal relevance” to cases that involve a different law and a different factual context.

The appeals court also found that the Title IX revisions may violate the First Amendment because the new definition of “discrimination” in the rule seems overly broad and could lead to policies potentially restricting political advocacy and other forms of protected speech, making it likely unconstitutional.

The 11th Circuit also agreed with the plaintiffs’ argument that they would suffer irreparable injury if the rule went into effect due to significant compliance costs, conflicts with state laws, and potential violations of free speech rights. The appeals court also found that the public interest and balance of equities favor the plaintiffs, as maintaining the status quo avoids enforcing a potentially unconstitutional rule while the new rule imposes possibly unnecessary burdens.

In dissent, Judge Charles Wilson argued that the plaintiffs failed to adequately support their claim of irreparable harm and that the majority erred in granting an injunction pending appeal, which he said is an “extraordinary remedy” that requires a higher burden of proof.

‘Radical Rewrite’

Alabama Attorney General Steve Marshall praised the decision in a public statement on social media platform X.

“I am very pleased to announce the Eleventh Circuit’s ruling today granting our motion to halt this attempt by the Biden-Harris Administration to turn Title IX from a law that protects women into one that would allow men into women’s locker rooms,” Marshall said. “Now, seven district courts, three courts of appeals, and all nine Justices of the Supreme Court have held that this radical rewrite of Title IX is likely unlawful. We will continue to fight the good fight for Alabama’s schoolchildren.”

May Mailman, director of the Independent Women’s Law Center, said in a statement, “We are grateful for this injunction to uphold the law and pause the abuse of women and girls.”

A DOE spokesperson told The Epoch Times in an emailed statement that the agency is reviewing the ruling and that it stands by the revised Title IX regulations.

“Title IX prohibits sex discrimination in a federally funded educational environment. The Department crafted the final Title IX regulations following a rigorous process to realize the non-discrimination mandate of Title IX. The Department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student,” the spokesperson said.

With the 11th Circuit’s Aug. 22 decision, court orders have paused the new rule in 26 states: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

*This article has been updated with comments received from the Education Department.