Biden extends losing streak as third judge blocks rule adding ‘gender identity’ to Title IX

A federal judge in Kansas temporarily blocked the Department of Education’s Title IX rewrite in four states, marking the third straight court loss by the administration as it struggles to defend its final rule adding “gender identity” to the landmark act against sex discrimination in education.

U.S. District Judge John Broomes granted a preliminary injunction Tuesday prohibiting the department from enforcing the policy, which was slated to take effect Aug. 1, in four states: Kansas, Alaska, Utah and Wyoming.


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Kansas Attorney General Kris Kobach cheered the decision, saying that his office has had many court victories, “but to me, this is the biggest one yet.”

“It protects girls and women across the country from having their privacy rights and safety violated in bathrooms and locker rooms and from having their freedom of speech violated if they say there are only two sexes,” the Republican official in a statement.

Mr. Kobach’s office also said that thousands of schools nationwide could be affected by the ruling.


The Biden administration was hit with at least a half-dozen lawsuits after releasing in April its updated Title IX rule, which also rolled back the Trump administration’s regulations on sexual harassment cases on campus.

In the last three weeks, the Biden administration is 0 for 3 in federal court when it comes to that rule, which makes discrimination against transgender persons equivalent to sex discrimination under Title IX.

Last month, a federal judge in Kentucky temporarily halted the rule from taking effect in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia, while a federal judge in Louisiana did the same for Louisiana, Mississippi, Montana and Idaho.

In his order Tuesday, Judge Broomes said the plaintiffs were likely to prevail, noting that the “legislative history [of Title IX] shows that Congress was concerned about the unequal treatment between men and women for admissions opportunities, scholarships, and sports.”

“The legislative history supports a finding that the term ‘sex’ referred to biological sex,” said Judge Broomes, an appointee of former President Trump. “As discussed, one of the principal purposes of the statute was to root out discrimination against women in education.”


“Rather, Defendants argue that this makes no difference because discrimination on the basis of gender identity is discrimination on the basis of biological sex,” he said. “Therefore, the final regulation is not contrary to Title IX.”

The federal court’s ruling halts the Title IX changes from taking effect while the lawsuit State of Kansas v. U.S. Department of Education continues.

The Mountain States Legal Foundation and Southeastern Legal Foundation, which represented the plaintiffs in the Kansas ruling, said the final rule has “devastating consequences for free speech.”

“Under the Department of Education’s new rule, ‘sex’ no longer means male or female but includes gender identity and sex stereotypes, so anyone who speaks out against gender identity, fails to recognize a classmate’s ‘preferred pronouns,’ or speaks up for their physical safety and right not to have to undress in front of the opposite biological sex can be punished for harassment,” said the foundations in a statement.


“We will continue to stand for our students’ rights to proclaim biological truth and will cede no ground to the left’s lies,” Mr. Walker said. “Soon, students can return to campus secure in the knowledge that they cannot be punished for what they believe.”

The Washington Times has reached out to the department for comment. The department defended its rulemaking process after the Louisiana ruling on June 13.

“The Department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee,” a DOE spokesperson told Higher Ed Dive in a statement.

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