Conservative courts poised to block new transgender student protections

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 the decades-old civil rights law and increasing the likelihood that the measures will be blocked in court before taking effect this summer. 

The Education Department last month unveiled a final set of sweeping changes to Title IX, which prohibits sex discrimination in schools and education programs that receive government funding, after more than a year of delays. The new regulations, slated to take effect Aug. 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 “plainly illegal” and undermine protections meant for cisgender students. The regulations would also prevent states from enforcing laws that bar transgender student-athletes from competing on sports teams consistent with their gender identity, the suits argue, though the administration has yet to finalize a separate proposal governing athletics eligibility. 

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

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

On Tuesday, West Virginia, Tennessee, Indiana, Kentucky, Ohio and Virginia filed a similar suit 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 sort of stack the odds against the Biden administration because there are just so many hoops to jump through,” said Josh Blackman, a professor at South Texas College of Law Houston. 

“You have to basically beat every single one of them to win,” he said. “And if any one of them vacates the rule, under the general understanding today, that vacates it nationwide.” 

The administration’s Title IX revamp would also bolster nondiscrimination protections for pregnant students and change how schools handle claims of sexual harassment and assault.  

The proposal — first unveiled by the Education Department in June 2022 on the landmark law’s 50th anniversary — drew immediate criticism from conservatives, primarily for its intent to extend protections to transgender students. In July 2022, Florida’s top education official brushed off 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 it,” Blackman said of the Biden administration’s anticipation 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 Education Department when asked for comment on the lawsuits. An Education Department spokesperson declined, saying the department does not comment on pending litigation. 

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

Since the cases challenging them were filed in largely conservative courts, it's possible that the administration’s Title IX rules will be blocked before they can take effect, said Sarah Warbelow, the Human Rights Campaign’s legal director. 

“It’s clear that the decision was made to file these lawsuits in more conservative jurisdictions,” she said, “not only with respect to the district courts, but also the circuit courts.” 

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

Meanwhile, Texas’s 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 voiced opposition to the passage of LGBTQ nondiscrimination laws including the Equality Act, federal legislation that would make sexual orientation and gender identity protected classes. 

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 must not be read to include gender identity.” 

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

“It’s important to note that who is in the U.S. Department of Justice and in the White House and at the Department of Education will all also influence those decisions,” Warbelow said. “And so, elections have consequences for the long-term trajectory of any litigation on this matter.” 

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

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

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

“By bringing these lawsuits, what you see is the opposite. You see state officials who are actively working to avoid compliance with nondiscrimination law that would ensure a safer environment for their students.”