Finding that four states are likely to succeed in their lawsuit challenging the Biden administration’s new Title IX regulations, a federal judge issued a temporary injunction Thursday that prevents the rule from taking effect in Louisiana, Mississippi, Montana and Idaho.
The lawsuit is one of at least seven that are seeking to block the Biden administration’s Title IX changes. Chief U.S. District Judge Terry Doughty, in the Western District of Louisiana, is the first to weigh in on those legal challenges. He wrote that the Education Department didn’t have the authority to enact the changes. The Biden administration can appeal the order to the U.S. Court of Appeals for the Fifth Circuit—a notoriously conservative panel that has blocked a number of federal rule changes.
“This case demonstrates the abuse of power by executive federal agencies in the rulemaking process,” he wrote. “The separation of powers and system of checks and balances exist in this country for a reason.”
The four states argued in the lawsuit that an injunction was needed to prevent “immediate irreparable harm” from the new rule.
A key issue for the states is a provision in the final regulations that expands the definition of sex discrimination, which is prohibited under Title IX, to include discrimination on the basis of sexual or gender identity. That change stems from a Supreme Court decision in 2020 in Bostock v. Clayton County, which said discrimination based on sex under Title VII of the Civil Rights Act of 1964 included discrimination based on sexual orientation or gender identity.
Doughty wrote that the Supreme Court didn’t say whether that opinion applied to other federal laws, and that lower courts have split on whether it applies to Title IX. He concluded that Bostock does not apply to Title IX.
“Enacting the changes in the Final Rule would subvert the original purpose of Title IX: protecting biological females from discrimination,” the judge wrote.
Doughty also agreed with the plaintiffs that the rule has vast economic and political significance, which triggers a higher level of scrutiny known as the major-questions doctrine to the case. The relatively new doctrine says in part that agencies need clear Congressional authorization when carrying out policies that have economic and political significance.
“The court finds that Congress did not give clear statutory authorization to this agency,” he said.
