And WDI USA is celebrating!
We are happy to report that because of a major legal development on January 9, sex means sex for Title IX purposes.
If you really want to understand the history of what led to the January 9 ruling, this post from last summer is critical reading. At a minimum, it’s important to understand that the Biden Administration issued a notice of proposed rulemaking in June 2022 that would redefine sex to include “gender identity” for all purposes under Title IX. It would, in effect, erase women and girls as a sex class under Title IX. The administration made that final in April 2024, to take effect in August 2024 (Final April 2024 rule).
In our previous post, former president Kara Dansky explained that on June 17, 2024, the District Court for the Eastern District of Kentucky issued a ruling in the matter of Tennessee, et al., v. Cardona. That ruling preliminarily blocked the Final April 2024 rule from taking effect in Tennessee, Kentucky, Virginia, West Virginia, Ohio, and Indiana (and as to certain individual and organizational plaintiffs).
These were the opening paragraphs of that ruling:
There are two sexes: male and female.1 More than fifty years ago, Congress recognized that girls and women were not receiving educational opportunities that were equal to those afforded to their male counterparts. It attempted to remedy this historical inequity through the passage of the Education Amendments Act of 1972, commonly known as Title IX. And for more than fifty years, educational institutions across the country risk losing federal funding if they fail to comply with the dictates of the statute.
This case concerns an attempt by the executive branch to dramatically alter the purpose and meaning of Title IX through rulemaking. But six states, an association of Christian educators, and one fifteen-year-old girl object. As they correctly argue, the new rule contravenes the plain text of Title IX by redefining “sex” to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking. If the new rule is allowed to take effect on August 1, 2024, all plaintiffs will suffer immediate and irreparable harm. Because the plaintiffs are likely to prevail on the merits of their claims, and the public interest and equities highly favor their position, the new rule will be enjoined, and its application stayed.
That was what is called a “preliminary injunction.” It meant the rule was not in effect in those states while the litigation was pending.
On January 9, the same court issued a final ruling in the same case. But this time it went much further—it vacated the Final April 2024 rule completely. That action removes the rule from the regulations. It’s as though the Final April 2024 rule doesn’t exist. It’s not in effect anywhere in the country. In coming to its decision, the court found that the administration had exceeded its statutory authority, and that the Final April 2024 rule violated the First Amendment and the Spending Clause of the Constitution, and was arbitrary and capricious.
The court also reminded the administration that the Supreme Court’s 2020 Bostock decision that protected “transgender people” in the workplace does not apply to education or any arena beyond employment. This is important because the Biden administration and other promoters of “trans” rights have relied heavily on Bostock in pushing for expanded protections that the Supreme Court had specifically exempted from the reach of its decision.
Several people have asked why the ruling applies nationwide, because the issuing court is a single federal district court. The reason is that the court vacated the Final April 2024 rule. It could have simply “enjoined” (blocked) it in the plaintiff states and with respect to the other plaintiffs. The court went further and vacated it in its entirety. In addition, the administration had asked the court to at least maintain some portions of the Final April 2024 rule, even if it found that other parts were unlawful. The court instead rejected the entire Final April 2024 rule, having decided that the redefinition of sex to include “gender identity” infected the rule in its entirety and that no part of the rule could be salvaged.
This is huge for obvious reasons, but there’s even more reason to celebrate.
Many people thought that the incoming administration could simply undo the Final April 2024 rule with the stroke of a pen. What they did not realize was that the Final April 2024 rule was not simply an executive order; it was a rule that had gone through the entire federal rulemaking process (it was different from the executive orders Biden spent the first half of 2021 issuing). If the incoming administration wanted to remove the Final April 2024 rule from the Title IX regulations, it would have had to start the entire rulemaking process from scratch. Now it doesn’t have to do that.
This is a final and appealable ruling, meaning that the administration can still appeal to the U.S. Court of Appeals for the Sixth Circuit, and possibly to the Supreme Court (it is unlikely to do so, given that the administration is going to change hands in less than two weeks). Nonetheless, this ruling is cause for celebration: Sex is once again real for all Title IX purposes (schools and sports), which is excellent news for women and girls as a sex class.
- The defendants made this concession during oral arguments on the plaintiffs’ motion for injunctive relief. The parties have agreed to little else. ↩︎
