Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:
The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....
For purposes of Title IX, “sex” is unambiguous. Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit delegation.”... Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ... Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...
The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...
The court also concluded that the new rules violate teachers' free speech rights, saying in part:
... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values.... For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...
It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....
The court also focused on parental rights and privacy rights, saying in part:
Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate. To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.
... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity. This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.
ADF issued a press release announcing the decision.
