On June 17, a federal judge issued a temporary injunction halting the Biden administration’s updated Title IX transgender policy in six more states.
The policy change, which redefines “sex” to include “gender identity,” has stirred debate by allowing male students who identify as female access to facilities like girls’ locker rooms and bathrooms.
“There are two sexes: male and female,” begins the memorandum and opinion written by U.S. District Judge Danny C. Reeves, filed on June 17 at the U.S. District Court, Eastern District of Kentucky, Covington Division.
The judge’s decision issues a preliminary injunction preventing the new rule from being enforced in six states: Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia. Additionally, the rule has been blocked in at least five other states.
Judge Reeves determined that the Department of Education (DOE) went beyond its legal authority when establishing the new rules and made decisions that were deemed “arbitrary and capricious.”
The Department of Education’s announcement on April 19 caused uproar and triggered numerous lawsuits. The final rule expands the longstanding Title IX law, originally aimed at preventing sex discrimination in schools, to now cover “sexual orientation” and “gender identity.”
The upcoming changes, scheduled to take effect on August 1, allow individuals who identify as female despite being biologically male to access women’s restrooms, locker rooms, and participate in female-exclusive groups.
The rules also redefine “harassment” to include the use of pronouns based on biological sex rather than chosen gender identity. Schools that do not comply face the risk of losing crucial federal funding and potential lawsuits.
Judge Reeves criticized the department for not adequately addressing concerns about safety risks to students and faculty posed by the new rule. He emphasized that the expanded Title IX could have “serious” implications for free speech.
“The rule includes a new definition of sexual harassment which may require educators to use pronouns consistent with a student’s purported gender identity rather than their biological sex,” the judge wrote.
“Based on the ‘pervasive’ nature of pronoun usage in everyday life, educators likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs,” he added.
“A rule that compels speech and engages in such viewpoint discrimination is impermissible,” Judge Reeves said.
A DOE spokesperson said in an emailed statement that Judge Reeves’s ruling is under review.
“We are reviewing the ruling,” the spokesperson said.
“Title IX guarantees that no person experience sex discrimination in a federally funded educational environment. The Department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The Department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student,” he continued.
By contrast, Kentucky Attorney General Russell Coleman praised the ruling.
“The judge’s order makes clear that the U.S. Department of Education’s attempt to redefine ‘sex’ to include ‘gender identity’ is unlawful and beyond the agency’s regulatory authority,” Mr. Coleman said in a statement.
The case in Kentucky is among at least seven backed by more than 20 GOP-led states opposing the Title IX rule.
A Texas judge recently ruled to block enforcement of the new rule in the Lone Star State, while a judge in Louisiana halted its enforcement in Louisiana, Mississippi, Montana, and Idaho.
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 department finalized the Title IX changes in April, expanding the definition of sex discrimination and sex-based harassment.
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