FRANKFORT, Kentucky (AP) — A federal appeals court on Wednesday declined to overturn a judge’s order temporarily blocking the Biden administration’s fresh Title IX rule expanding protections for LGBTQ+ students.
The ruling by the 6th U.S. Circuit Court of Appeals upheld a preliminary injunction issued last month by a federal district judge in Kentucky. That order blocked the fresh rule in six states – Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia – even as similar litigation is taking place in Republican-led states across the country.
“In our view, the district court probably correctly concluded that the definition of sex discrimination contained in the rule exceeds the authority of the U.S. Department of Education,” a three-judge panel of the 6th Circuit said in its majority decision.
The Education Department did not immediately respond to an email and phone call seeking comment.
Kentucky Attorney General Russell Coleman hailed the latest ruling as “a victory for common sense.”
“For 50 years, Title IX has ensured equal opportunities for women and young girls in school and on the playing field,” said Coleman, a Republican. “Today, the 6th Circuit is the first appeals court in the nation to stop President Biden’s blatant attack on these basic protections.”
Chris Hartman, executive director of the Fairness Campaign, a Kentucky-based LGBTQ+ advocacy group, warned that the ruling would put transgender children at risk.
“We believe that Kentucky schools have a duty to protect all students, including transgender students, and that they should implement the new Title IX rule regardless of the 6th Circuit Court’s opinion,” Hartman said in a statement Wednesday evening.
The rule would extend Title IX civil rights protections to LGBTQ+ students, broaden the definition of sexual harassment in schools and colleges, and add protections for victims. The fresh protections have been praised by civil rights activists, but they have drawn fierce criticism from opponents who say they undermine the spirit of Title IX, a 1972 law that prohibits sex discrimination in education.
Most Republican state attorneys general have gone to court to challenge the fresh rule.
The rule takes effect on August 1, but judges have temporarily blocked enforcement while litigation progresses in 15 states: Alaska, Indiana, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.
The regulation is being challenged in 12 other states whose enforcement has not been suspended: Alabama, Arkansas, Florida, Georgia, Iowa, Missouri, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota and South Carolina.
Republicans argue that the rule is a pretext to allow transgender girls to play on girls’ sports teams. The Biden administration has said the rule does not apply to sports.
In its ruling Wednesday, the 6th Circuit panel noted that critics of the rule had warned that its introduction just before the start of the fresh school year would place a “burdensome burden” on states.
The 6th Circuit panel also expedited a full hearing of the case for this fall.
In issuing the injunction last month, U.S. District Judge Danny C. Reeves in Kentucky noted that Title IX was intended to create a “level playing field” between men and women in education, but said the department was trying to “derail deeply entrenched laws” with the fresh policy.
“In essence, the Department would be turning Title IX on its head by redefining ‘sex’ to include ‘gender identity,'” he said in his ruling. “But ‘sex’ and ‘gender identity’ do not mean the same thing. The Department’s interpretation is contrary to the plain language of Title IX and therefore exceeds its authority to issue regulations under that law.”
In response to Reeves’ actions, the Department of Education stated at the time: “Title IX guarantees that no one will be discriminated against on the basis of sex in a federally funded educational setting. The Department has developed the final Title IX regulations following a rigorous process.”
One member of the three-judge panel partially disagreed with the appeal court’s ruling.
“All three members of the panel, it must be emphasized, agree that these core provisions of the rule should not take effect on August 1,” the majority decision states. “Our modest disagreement in this emergency situation revolves around the question of whether the other parts of the rule can be severed from these core provisions.”
