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Federal judge temporarily blocks Biden Ed Dept. policy adding gender identity to Title IX

Judge calls new rule an ‘abuse of power’

President Biden’s Education Department misapplied the law and overstepped its authority when it announced that Title IX will now include gender identity, a federal judge stated in granting a preliminary injunction against the rule in four states.

U.S. District Judge Terry Doughty’s Thursday ruling now blocks enforcement of what’s referred to as “Biden’s Rule” in Louisiana, Mississippi, Montana, and Idaho, which along with several groups have filed lawsuits against the Democrat administration over its new pro-transgender policy.

“This injunction prevents the new rules from going into effect pending further review by the district court,” Liz Murrill, Louisiana’s attorney general, said in a statement. “…This a victory for women and girls.”

The Biden administration in April announced a Title IX revision, adding gender identity to the decades-old law. The change would allow female-identifying men into women’s locker rooms and bathrooms and require others to address them with their preferred pronouns.

The judge said that goes against the law’s original intent.

“The text of Title IX confirms that Title IX was intended to prevent biological women from being discriminated against in education in favor of biological men,” Doughty wrote in his 40-page ruling. “Title IX lists several exemptions which use the language ‘one sex’ or ‘both sexes’ showing that the statute was referring to biological men and biological women, not gender identity, sexual orientation, sex stereotypes, or sex characteristics.”

Doughty also stated the Biden rule “failed to include any requirements for changing one’s gender identity and did not include any guidance for addressing ‘non-binary’ students or students with other gender identities.”

“A ‘gender fluid’ person could possibly change gender identities every day or several times per day. The Final Rule prohibits recipients from enacting common-sense rules to make sure the person who changed gender identities is sincere. Allowing a student to announce what gender they are, without requiring any supporting documentation, is arbitrary and capricious,” according to the judge.

Doughty also chastised the rule because it “failed to consider that biological females and biological males that identify as females have different body parts. Nearly every civilization recognizes a norm against exposing one’s unclothed body to the opposite sex.”

The judge added:

Title IX was enacted for the protection of the discrimination of biological females. However, the Final Rule may likely cause biological females more discrimination than they had before Title IX was enacted. Importantly, Defendants did not consider the effect the Final Rule would have on biological females by requiring them to share their bathrooms and locker rooms with biological males. The Final Rule only focuses on the “effect on the student who changes their gender identity” and fails to address the effect on the other students (“cisgender students”). These cisgender females must use the bathroom, undress, and shower in the presence of persons who may identify as females but still have male biological parts. Many of these students are minors. The DOE made no attempt to determine the effect on students having students who are biologically the opposite sex in their locker rooms and bathrooms. Instead, the DOE declared in the Final Rule, with no explanation, that transgender students do not pose a safety risk for cisgender students.

In the end, the judge concluded, the “case demonstrates the abuse of power by executive federal agencies in the rulemaking process. The separation of powers and system of checks and balances exist in this country for a reason.”

Inside Higher Ed reported that the four states’ lawsuit that Doughty ruled on are among several complaints “seeking to block the Biden administration’s Title IX changes.”

Doughty “is the first to weigh in on those legal challenges,” IHE reported. “He wrote that the Education Department didn’t have the authority to enact the changes. The Biden administration can appeal the order to the U.S. Court of Appeals for the Fifth Circuit—a notoriously conservative panel that has blocked a number of federal rule changes.”

MORE: More conservative groups join legal battle against Biden’s ‘radical’ Title IX rewrite

IMAGE: Jacob Lund / Shutterstock

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About the Author
Fix Editor
Jennifer Kabbany is editor-in-chief of The College Fix.