The Biden administration and red states appear headed for another showdown over federalism.
On Friday, U.S. District Judge Charles Atchley temporarily halted a directive by President Joe Biden’s Education Department to redefine sex under Title IX to include gender identity. Title IX is the 50-year-old federal law that outlawed discrimination in education venues on the basis of sex.
The original intent was to put women on equal footing with men in education. One fallout of that, for instance, has been for universities to boost funding and put greater emphasis on women’s sports.
But the Biden administration expanded the rules last month, during Pride Month and just after the golden anniversary of the adoption of Title IX. Under the new interpretation, the inclusion of LGBTQ people under Title IX would open up women’s locker rooms, restrooms, and other facilities to biological men who identify as women.
After the administration signaled the change last year, 20 red states sued, claiming in court records that the rule change went “far beyond” what Congress intended in the original legislation. “Title IX’s prohibition of discrimination ‘on the basis of sex’ does not encompass discrimination based on sexual orientation or gender identity,” the attorneys general of those states argued. Tennessee Attorney General Herbert Slatery is the lead plaintiff in the case.
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On Friday, in his order halting the rule changes, Judge Atchley, one of former President Donald Trump’s appointees, noted in his order that the policy expansion “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws.”
That recognized that some red states had passed laws banning trans women from women’s sports and facilities. The states had claimed that the rule, enacted administratively and not by Congress, was an infringement on their rights under the 10th Amendment.
But as Politico reported, the states also were concerned about losing federal funding if they didn’t comply with other aspects of the rule change. For example, requiring schools to enforce preferred-pronoun language for trans students.
“As it currently stands,” Judge Atchley wrote, “plaintiffs must choose between the threat of legal consequences — enforcement action, civil penalties, and the withholding of federal funding — or altering their state laws to ensure compliance with the guidance and avoid such adverse action.”
Given the Biden administration’s aggressive pursuit of policies that promote gender ideology, the Education Department will likely appeal Atchely’s decision. Which means the case could be headed toward the Supreme Court.
Last month, the nation’s high court delivered two significant rulings that backed states’ rights.
One was the court’s conservative majority overturning the 1973 Roe v. Wade decision, which tossed the policy-making on abortion back to the states.
The other was the court’s rejection of an Obama-era regulation that ordered the EPA to work to control greenhouse emissions by forcing power plants to adopt green-energy policies and shift away from fossil fuels. The Supreme Court’s conservative justices ruled that the EPA’s rule-making was outside the scope of authority granted by Congress, which, as the court noted, had repeatedly rejected regulation of greenhouse gas emissions.
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