U.S. District Judge Danny C. Reeves, of Kentucky’s Northern District, struck down all 1,500 pages of the revamped law, citing numerous legal issues. For more than half a century, Title IX has been federal law that advanced opportunities for girls and women in education and athletics. Any entity that received federal funding was bound to comply.
But while the original law prohibited discrimination on the basis of sex, Biden’s rewrite sought to include transgender individuals in the definition of sex, paving the way for biological males to occupy women’s safe spaces like restrooms and locker rooms and welcoming them onto their athletic teams.
Reeves’ decision isn’t the first time the Biden administration has lost in court in this matter, the challenges coming from Republican-led states, 26 of them, which had been successful in delaying the scheduled Aug. 1 start of the new Title IX.
But while other decisions delayed implementation, Matt Sharp of Alliance Defending Freedom (ADF) says Judge Reeves broke new ground.
“We've had several courts across the country that have issued a preliminary injunction against the Biden administration's unlawful Title IX rule. What the Kentucky court did for the first time is actually vacate this rule. That means it's essentially wiped off the books nationwide,” Sharp explained on Washington Watch Friday.
Administration silent so far
The Biden administration has not commented on the ruling. They’re in the unusual position of seeing legislation favored by the radical wing of the Democratic Party while the administration has just days left in power.
“I suppose they could appeal to the Supreme Court. I think they don’t have time to do that obviously, and I think that would be a dangerous thing for them to do. Hopefully we will just see the rule withdrawn,” Meg Kilgannon, the senior fellow for education studies at Family Research Council, said on the program last Thursday, hours after Reeves’ decision.
For now, the ruling stands as the foremost word on the dispute and takes a lot of pressure off school districts and educators who would be bound to enforce the rewrite were it eventually to win its way through the courts. The rewrite contains free-speech issues as well as requirements for educators to use a student’s preferred pronouns.
When the rewrite was first announced, ADF challenged it in five different lawsuits. Every one of those lawsuits resulted in a preliminary injunction against implementation of the new Title IX.
But those lawsuits were limited to the states involved. Now, according to Sharp, Reeves’ ruling is nationwide and tackles the larger issue that the legislation is just plain wrong.
“The Biden administration didn't have the authority to do this, that as the court described, it actually flies in the face and turns Title IX on its head to try and say that a man can be a woman and have access to women's spaces and opportunities,” Sharp said.
As the Title IX rewrite now stands “whether you're in a red state, blue state, no matter where you are, the Biden administration and any future administrations cannot use this rule to try and force a school or college to allow men in girls locker rooms and restrooms on women's teams or violate any other rights to free speech or parental rights,” the attorney said.
Sharp is hopeful other courts will follow the lead of Kentucky’s Northern District.
“What we hope to see is that in those … four other court cases that have been going through the process, that those courts are going to adopt this same ruling. Then we end up with court after court after court consistently ruling that this is unlawful; [that] the administration doesn't have the authority to do it,” he said.
Next landscape in fight for women’s rights
But while federal law will not force the inclusion of men in women’s safe spaces, it does not prohibit state laws that provide for such – and many do. Sharp cited current law in Connecticut that allows males on female sports teams.
So does California. The women’s volleyball team at San Jose State University had a season marked by controversy. Seven of its wins came by forfeit after Boise State (three times), Wyoming (twice), Nevada and Utah State all refused to play San Jose because it used a male player. Lawsuits were filed on both sides.
For now there’s a big victory at the federal level, Sharp said.
“[But] we still have a lot of states that are adopting bad policies,” he stated. “So, the next step is taking the same reasoning that Title IX doesn't require this and that it could actually violate Title IX to put men on women's teams – and take that into states that are adopting bad local or statewide policies.”
Sharp's argument is consistent with that of Kilgannon, who warned that pockets of liberal influence in red states require students, parents and educators to be on guard against a push for policies that align with Biden's Title IX rewrite.
