States Scramble After Title IX Ruling Related to Gender Identity

By Jim Saunders, The News Service of Florida

Hours after a U.S. district judge ruled against them, Florida and three other states late Tuesday asked an appeals court to temporarily halt a new federal rule about sex-based discrimination in education programs.

Attorneys for Florida, Alabama, Georgia, South Carolina and other plaintiffs scrambled after U.S. District Judge Annemarie Carney Axon on Tuesday issued a 122-page decision that rejected a request for a preliminary injunction against the rule, which deals with Title IX, a landmark 1972 law that bars discrimination in education programs based on sex.

The court fight focuses heavily on a change that would extend Title IX regulations to apply to discrimination based on gender identity. The rule, finalized in April, is slated to take effect Thursday, attorneys for the plaintiffs wrote in the late-Tuesday filing at the 11th U.S. Circuit Court of Appeals.

The filing seeks an “administrative injunction” to temporarily halt federal officials from enforcing the rule while the plaintiffs’ attorneys prepare a more-detailed request to put the rule on hold. The states contend that the rule could force them to do such things as allow transgender students to use bathrooms that don’t match their sex assigned at birth.

“The regulations require a series of radical changes at schools that take federal money,” the plaintiffs’ attorneys wrote.

But U.S. Department of Justice lawyers argued in a response Wednesday morning that the motion should be denied, saying that the plaintiffs “ask this (appeals) court for immediate injunctive relief barring defendants’ effectuation of portions of a regulation that is about to come into force — in essence, the very preliminary injunction that the district court properly exercised its discretion to decline to issue.”

Axon, an Alabama federal judge nominated to the bench by former President Donald Trump, said the plaintiffs had not provided adequate arguments to obtain a preliminary injunction.

“Plaintiffs must, among other things, establish a substantial likelihood of success on the claims advanced in their complaint to obtain a preliminary injunction from this court,” Axon wrote. “They failed to sustain that burden.”

In part, Axon wrote that the plaintiffs had not adequately backed up their claims that the Biden administration actions were arbitrary and capricious. The states have alleged violations of a law known as the Administrative Procedure Act.

“The court highlights that at later stages in these proceedings, more carefully developed legal arguments and the benefit of a fuller evidentiary record might yield a different result,” Axon wrote. “But the court declines to exercise its discretion to grant the extraordinary relief (a preliminary injunction) plaintiffs have requested.”

The rule and the lawsuit, which was filed in April in the federal Northern District of Alabama, came amid numerous moves by Florida and other Republican-led states in recent years to pass laws and regulations about LGBTQ people. For example, states have prevented transgender students from using school bathrooms that don’t match their sex assigned at birth and blocked or restricted treatments such as puberty blockers and hormone therapy for people with gender dysphoria.

The lawsuit alleges, in part, that the Biden administration overstepped its legal authority in extending the Title IX regulations to apply to discrimination based on gender identity. It also contends that the rule would clash with the states’ decisions.

“The rule conflicts with many of the state plaintiffs’ laws that govern public institutions of higher education and primary and secondary education, including laws involving harassment, bathrooms, sports, parental rights and more,” the lawsuit said. “The rule thus impedes the state plaintiffs’ sovereign authority to enforce and administer their laws and creates pressure on the state plaintiffs to change their laws and practices.”

But in a brief filed in district court, Justice Department attorneys wrote that a preliminary injunction “would significantly harm the government’s interests in preventing such discrimination.”

“Sex discrimination in educational environments has devastating consequences, including the effects of harassment based on sexual orientation and gender identity,” the Justice Department brief said.

In the motion filed late Tuesday at the Atlanta-based appeals court, attorneys for the plaintiffs said courts in other judicial districts and circuits across the country have issued preliminary injunctions against the rule. The motion said an administrative injunction is needed to “preserve the status quo” and cited such things as costs of complying with the rule.

“Here, the rule upends the status quo by requiring schools to digest hundreds of pages of new regulations, change their policies, train their employees, and much more,” the motion said. “The rule itself estimates that compliance will cost millions.”

But Justice Department attorneys said the plaintiffs had known since April that the rule was slated to take effect Aug. 1.

“In the intervening three months, the status quo has always been that the rule would go into effect and that plaintiffs would have to comply,” Justice Department attorneys wrote in Wednesday’s response. “If plaintiffs waited until yesterday afternoon to begin their compliance efforts, that is an emergency entirely of their own making.”

The lawsuit names as defendants the U.S. Department of Education and Education Secretary Miguel Cardona. Along with the states, other plaintiffs are four groups: the Independent Women’s Law Center, the Independent Women’s Network, Parents Defending Education and Speech First.