Kentucky Court Blocks Biden Administration’s Redefinition of Title IX to Include Gender Identity

A federal court in Kentucky has blocked the Biden Administration’s effort to redefine the term “sex” in Title IX to include expressions of “gender identity.”

Chief Judge Danny Reeves argues in his ruling that the updated Title IX regulations exceed the Department of Education’s authority, violate the Constitution, are the result of “arbitrary and capricious” agency action.

First enacted in the 1970s, Title IX represents a landmark piece of civil rights legislation designed to prohibit sex-based discrimination in any school or educational program receiving federal funding.

Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The final rule issued by the Biden Administration’s Department of Education “clarifie[s]” that that “discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

“While the regulations do not include a specific definition of ‘gender identity,’ the Department understands the term to ‘describe an individual’s sense of their gender, which may or may not be different from their sex assigned at birth,'” wrote Chief Judge Reeves.

These rules also redefined “sexual harassment” as “sex-based harassment,” referring to “sexual harassment and other harassment on the basis of sex,” such as “unwelcome sex-based conduct that based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”

Under the updated rules, speech covered by Title IX would not only include that which occurred on campus, but that which is made on social media or “other platforms.”

Reeves contends that these updated rules exceed the Department’s statutory authority, as they are only permitted to adopt “rules, regulations, and orders” to effectuate the prohibitions on “sex discrimination” in a manner that is “consistent with the objectives of the statute.”

“Put simply, there is nothing in the text or statutory design of Title IX to suggest that discrimination ‘on the basis of sex’ means anything other than it has since Title IX’s inception — that recipients of federal funds under Title IX may not treat a person worse than another similarly-situated individual on the basis of the person’s sex, i.e., male of female,” Reeves wrote.

Although the Department relied heavily on the Supreme Court’s ruling in Bostock v. Clayton County — which found that an employer would be in violation of Title VII’s prohibition on sex discrimination for firing an employee based on “transgender status” — Reeves suggests that the Title IX dispute presents a notably different set of considerations.

Reeves goes on to explain that applying this ruling to Title IX read it “far too broadly,” as the Court “expressly limited its holding to Title VII and, even in that restricted context, ‘[did] not purport to address bathrooms, locker rooms, or anything else of the kind.”

It is further argued that expanding Title IX to understand “on the basis of sex” as including “gender identity” would “turn Title IX on its head.”

“While Title IX sought to level the playing field between men and women, it is rife with exceptions that allow males and females to be separated based on the enduring physical differences between the sexes,” Reeves wrote.

The judge also determined that the Department of Education’s final rule is in violation of the Constitution on the grounds that it “offends the First Amendment.”

Although the Department contends that the rule would not require Title IX recipients to “use names and pronouns associated with a student’s asserted gender identity,” Reeves said that the “new subjective harassment standard…quite clearly compels this result.”

He also indicates that the rule is “vague and overbroad,” meaning that recipients of Title IX funding “have no way of predicting what conduct will violate the law.”

The judge further suggests that the rule violates the Spending Clause of the Constitution, as “legislation that conditions the receipt of federal funds” cannot “induce unconstitutional action.”

Lastly, Reeves determined that the Department of Education’s updated rules for Title IX are “arbitrary and capricious,” as they do “not provide a reasoned explanation for departing from its longstanding interpretation of Title IX.”

He also suggests that they “fail to account for the glaring inconsistencies that the Final Rules creates within Title IX.”

For example, Reeves cites that Congress has allowed for separation of the sexes in living facilities and social organizations is permissible, yet the new regulations indicate that institutions cannot separate the sexes for things such as bathrooms, toilets, or showers.

For these reasons, Reeves offered declaratory relief and vacated the Department of Education’s final rule for Title IX.

The Biden Administration did not immediately react to the ruling, nor did they offer an indication of a potential appeal.

This ruling comes just days before president-elect Donald Trump (R) is set to take office. President-elect Trump has previously expressed opposition to the Biden Administration’s rule, saying that he would take steps to reverse course and “end it on day one.”

Click Here to Read the Full Text of the Ruling