Appeals court: Biden admin failed to follow proper procedures in Title IX gender identity guidance

A U.S. appeals court upheld a previous ruling blocking the Biden education department’s threat to withhold funding from schools that don’t follow its progressive Title IX guidance on gender…

A U.S. appeals court upheld a previous ruling blocking the Biden education department’s threat to withhold funding from schools that don’t follow its progressive Title IX guidance on gender identity. 

The U.S. Department of Education had previously warned schools that failure to allow “gender identity” to supersede biological sex in sports programs and facilities may lead to withdrawal of federal funding. 

However, the U.S. Court of Appeals for the Sixth Circuit ruled Friday the education department failed to follow the proper procedures in issuing the guidance, and halted its enforcement of the guidance until the outcome of a lawsuit filed in 2021 by 20 state attorneys general. 

In that suit, the states argued the federal education guidance was in conflict with their own state laws. 

“The 6th Circuit ruled today to uphold a lower court order to halt Biden admin guidance that illegitimately reinterprets Title IX as proceedings continue in Tennessee v. U.S. Department of Education,” Alliance Defending Freedom (ADF) posted to Facebook after the decision was released. 

“The court’s decision – a victory for schools and female athletes – highlights once again that the Biden admin has overstepped when it comes to Title IX,” added ADF, which represents Arkansas athlete Amelia Ford and the Association of Christian Schools International in the case

In its ruling, written by Judge John Nalbandian, a Donald Trump appointee, the Sixth Circuit summarized:

“After the Supreme Court’s 2020 Bostock decision, the U.S. Department of Education issued three documents under Title IX – each stating that the Department will now fully enforce Title IX to prohibit sexual orientation and gender identity discrimination in education programs and activities receiving federal financial assistance … The Department’s actions prompted twenty states to bring a pre-enforcement challenge. A district court granted the States a preliminary injunction. On interlocutory appeal, the Department challenges this ruling, arguing that the States lack standing, the Documents are unreviewable, and the district court abused its discretion in issuing the injunction. We disagree and affirm.” 

The court agreed that the 20 states “have ‘concrete interests’ that the ‘procedural requirements of notice and comment prior to rulemaking … certainly protect.’” 

“Because the Department skipped the notice-and-comment process,” the court wrote, “the States lacked a chance to argue that the Department’s new Title IX policy was wrong before it was issued.” 

But while the guidance has been blocked, the administration’s “final rule” on Title IX, which radically redefines the word “sex” to include “gender identity,” is still being litigated.

“Schools are still obligated to comply with the final Title IX regulations by August 1,” an education department spokesperson said in a statement to The Epoch Times, despite the appeals court decision. 

The circuit court’s ruling, as ADF clarifies, “only deals with the administration’s Title IX guidance documents, and not its recently released final rule.”

Nevertheless, U.S. District Court Judge Terry Doughty issued a temporary injunction Thursday against the new Biden Title IX rule – the first preliminary injunction in the nation that blocks the rule from taking effect until the case is reviewed by the U.S. District Court of the Western District of Louisiana. 

And on Monday a Kentucky district court issued a second injunction to halt the Title IX rewrite while the lawsuit, State of Tennessee v. Cardona, moves forward.

Together, the two injunctions block the rule from taking effect in Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia, Louisiana, Mississippi, Montana and Idaho.

“The Biden administration’s radical push to redefine sex threatens the equal opportunities that women and girls have enjoyed for 50 years under Title IX,” said ADF Senior Counsel Matt Bowman, who argued before the 6th Circuit. “Once again, the administration has overstepped on Title IX and tried to usurp congressional authority. This is a significant victory for Amelia and the Christian schools we represent. Biology, not gender identity, matters in athletics.”