Conservative Courts Ready to Block New Protections for Transgender Students

More than a dozen Republican-led states have sued the Biden administration over new Title IX regulations that add protections for transgender students, setting up a legal battle with the White House over enforcement of decades-old civil rights law and increasing the likelihood that the measures will be blocked in court before they come into force this summer.

The Department of Education last month unveiled a final set of sweeping changes to Title IX, which prohibits sex discrimination in schools and educational programs that receive government funding, after more than a year of delays. The new regulations, set to come into effect on August 1, also cover discrimination based on sexual orientation and gender identity.

Fifteen Republican-controlled states sued the department last week in four federal lawsuits that argue the new regulations are “patently illegal” and undermine protections intended for cisgender students. The regulations would also prevent states from enforcing laws that prohibit transgender student-athletes from competing on sports teams consistent with their gender identity, the suits argue, although the administration has not yet finalized a separate proposal governing eligibility for athletics.

Texas on Monday filed the first challenge to the new regulations, which Attorney General Ken Paxton wrote are based on a misinterpretation of the Supreme Court’s landmark ruling in Bostock v. Texas. It concluded that employees are protected from discrimination based on sexual orientation and gender identity.

Louisiana, Montana, Idaho and Mississippi followed, filing joint actions in the Western District of Louisiana.

On Tuesday, West Virginia, Tennessee, Indiana, Kentucky, Ohio and Virginia filed a similar lawsuit in the Eastern District of Kentucky. Alabama, Florida, Georgia and South Carolina sued Wednesday in the Northern District of Alabama.

“The timing and the sheer number of courts that have been invoked here raise the odds against the Biden administration because there are so many hurdles to overcome,” said Josh Blackman, a professor at South Texas College of Law Houston.

“You basically have to beat every one of them to win,” he said. “And if any of them vacate the rule, in the general understanding today, that vacates it across the country.”

The administration’s Title IX overhaul would also strengthen anti-discrimination protections for pregnant students and change how schools handle complaints of sexual harassment and assault.

The proposal – first put forward by the Department of Education in June 2022, on the 50th anniversary of the landmark law – drew immediate criticism from conservatives, particularly for its intention to extend protections to transgender students. In July 2022, Florida’s top education official dismissed the guidance as an attempt by the federal government to “impose a sexual ideology” on students and instructed schools not to follow it.

“I’m sure they were ready for this,” Blackman said of the Biden administration’s expectation of legal action against the new regulations. “They knew this was coming; It wasn’t a surprise.”

A White House spokesperson referred The Hill to the Department of Education when asked for comment on the lawsuits. A Department of Education spokesperson declined, saying the department does not comment on pending litigation.

The spokesperson emphasized, however, that schools “are required to comply with these final regulations” by August as a condition of receiving federal funds.

Since the cases challenging them have been filed in mostly conservative courts, it’s possible the administration’s Title IX rules could be blocked before they can take effect, said Sarah Warbelow, legal director at the Human Rights Campaign.

“Clearly the decision was made to file these lawsuits in more conservative jurisdictions,” she said, “not just with respect to district courts, but district courts as well.”

She pointed to Virginia, which joined Kentucky’s lawsuit. The cases filed in Kentucky are appealed to the 6th U.S. Circuit Court of Appeals, while the Virginia cases are appealed to the 4th Circuit, which has already ruled that Title IX prohibits discrimination against transgender students.

However, the Texas lawsuit, filed in the Amarillo Division of the Northern District of Texas, will almost certainly be heard by U.S. District Judge Matthew Kacsmaryk, who hears 95 percent of cases filed in Amarillo. Kacsmaryk, the division’s only federal judge, has expressed opposition to passing LGBTQ nondiscrimination laws, including the Equality Act, federal legislation that would make protected classes based on sexual orientation and gender identity.

In 2016, Kacsmaryk, then deputy counsel for the Christian conservative legal organization First Liberty Institute, wrote in a brief that “the term ‘sex’ in Title IX shall not be construed to include gender identity.”

Three of the four lawsuits challenging the Biden administration’s new regulations were filed in the 5th Circuit, the country’s most conservative federal appeals court.

“It’s important to note that whoever is in the U.S. Department of Justice, the White House, and the Department of Education will also influence these decisions,” Warbelow said. “And so, the election has consequences for the long-term trajectory of any litigation on this issue.”

Blocking the new regulations from taking effect would be a significant blow to LGBTQ students, especially in the South, where most of the lawsuits have been filed, said Brian Dittmeier, director of public policy at GLSEN.

On a 2021 Report of the group, which works to end anti-LGBTQ discrimination and bullying in schools, LGBTQ students in states such as Alabama, Texas and Louisiana have reported disproportionately high rates of victimization based on their sexual orientation or gender identity. Overall, more than 80% of LGBTQ students surveyed said they felt unsafe at school.

“This shows that there is a lot of room for state officials and school administrators to adopt policies and practices that truly ensure safer schools for their students,” Dittmeier said.

“When you bring these lawsuits, what you see is the opposite. We see state officials who are actively working to avoid enforcing anti-discrimination laws that would ensure a safer environment for their students.”