Federal Court Blocks Expansion of Title IX to Include Gender Identity

Kansas Attorney General Kris Kobach answers questions from reporters at his office in Topeka, Kan., on May 1, 2023. John Hanna/AP Photo

Another federal judge has issued a preliminary injunction against the federal government’s expansion of Title IX, which aims to redefine “sex” to include gender identity and sexual orientation.

The latest ruling on July 2 was in the case of “Kansas v. United States Department of Education,” which involves several states and organizations challenging the Department of Education’s (DOE) final rule to redefine “sex,” slated to take effect on August 1.

The plaintiffs, including Alaska, Utah, and Wyoming, as well as Moms for Liberty, Young America’s Foundation, and Female Athletes United, argued that the DOE’s new rule exceeds its statutory authority under Title IX of the Education Amendments of 1972.

They claimed that the rule’s redefinition of “sex” to encompass gender identity and sexual orientation contradicts the original legislative intent and statutory language, which focused on protecting biological women from discrimination.

Several lawsuits were filed in groups and individually by 26 GOP-led states opposing the Title IX rule and last month, judges in other districts blocked the enforcement of the rule in at least 11 of those states.

Kansas Attorney General Kris Kobach, who argued the case in court in June, lauded the decision, noting that all Kansas school districts are now “on notice” that they must abide by the injunction and are prohibited from changing any policies to reflect the DOE’s Title IX rule.

“We have had many wins in court, but to me, this is the biggest one yet,” Mr. Kobach wrote in a statement after the decision. “It protects girls and women across the country from having their privacy rights and safety violated in bathrooms and locker rooms and from having their freedom of speech violated if they say there are only two sexes.”

In an emailed statement to The Epoch Times, a DOE spokesperson said they were reviewing the ruling.

“Title IX prohibits sex discrimination in a federally-funded educational environment,” the spokesperson said.

“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. While the appeals of previous rulings are pending, we have asked the trial courts to allow the unchallenged provisions—the bulk of the final rule—to take effect in these states as scheduled, on August 1.”

‘Transformative Expansion’

U.S. District Judge John W. Broomes granted the preliminary injunction, writing in his opinion that the plaintiffs demonstrated a likelihood of success on the merits of their claims and potential for irreparable harm if the rule were implemented.

On the statutory interpretation of Title IX, Judge Broomes emphasized that Title IX’s text and legislative history indicate that “sex” refers to biological sex.

“[T]he unambiguous plain language of the statutory provisions and the legislative history make clear that the term ’sex' means the traditional concept of biological sex in which there are only two sexes, male and female,” Judge Broomes wrote.

The judge also applied the “major questions doctrine,” arguing that significant policy changes require clear congressional authorization.

“The DOE simply lacks authority to expand sex to mean gender identity,” he explained. Congress did not authorize such a “transformative expansion” under the major questions doctrine, the judge said.

Judge Broomes also argued that the new conditions tied to federal funding were not clearly stated when Title IX was enacted, thus violating the Spending Clause. He found that the DOE’s rule imposed new obligations on states and educational institutions without clear congressional authorization.

He also took issue with privacy and safety concerns. “[T]his case involves the government’s decision to interpose itself into the field of education, an area traditionally left to state and local governments and the schools, themselves, and in which the government’s edicts result in the subordination of the interests of non-transgender students (many of whom are minors) in free speech, privacy, and safety to the interests of transgender students in expressing and conducting themselves in accordance with their individual notions of gender identity.”

What Sparked Legal Challenges

President Joe Biden issued an executive order on March 8, 2021, that formally tasked the DOE with amending Title IX in a way that includes protections for an educational environment free of “discrimination on the basis of sexual orientation and gender identity.”

The DOE on April 19 sparked a flurry of lawsuits by announcing the final rule expanding the decades-old Title IX to include “sexual orientation” and “gender identity.”

The changes would give males who identify as females the right to use women’s restrooms and locker rooms and to join female-only organizations while defining “harassment” to include the use of pronouns that conform to one’s sex rather than one’s chosen gender identity. The new rules also mean that schools that refuse to comply risk losing essential federal funding and facing the prospect of lawsuits.

This week’s decision in Kansas follows a similar ruling by U.S. District Judge Danny C. Reeves in the Eastern District of Kentucky, which blocked the enforcement of the new Title IX rule in Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia.

Judge Reeves last month found that the DOE exceeded its statutory authority and acted in an “arbitrary and capricious” manner.

Also last month, a Texas judge blocked enforcement of the new rule in the Lone Star State, while a judge in Louisiana halted its enforcement in Louisiana, Mississippi, Montana, and Idaho.

Tom Ozimek contributed to this report.