Federal judge blocks Title IX rule for LGBTQ students in Kentucky, 5 other states

Ryan C. Hermens/rhermens@herald-leader.com

A federal judge has blocked the implementation of a new Title IX rule that prohibits discrimination based on gender identity and sexual orientation.

Danny Reeves, chief judge in the U.S. District Court for the Eastern District of Kentucky, handed down an opinion Monday that enjoined enforcement of that portion federal civil rights law, which was recently implemented by the administration of Democratic President Joe Biden.

Scheduled to take hold in August, the rule would have expanded Title IX civil rights protections explicitly to LGBTQ+ students for the first time since the enactment of the 1972 law.

The new rule would clarify that Title IX law applies to discrimination based on sexual orientation and gender identity.

Reeves in his 93-page decision Monday said, “There are two sexes: male and female.”

By expanding protections for sexual orientation and gender identity — a proposal undergirded by an understanding that people can be transgender and maintain gender identities that contrast with the gender they were assigned at birth — it “ignores fundamental biological truths between the two sexes,” he wrote.

In doing so, it “deprives women and girls of meaningful access to educational facilities,” Reeves added.

What’s more, binding schools to uphold these protections could compromise parental choice, if a parent, for example, opposes their child’s gender identity.

“This undermines a meaningful role for parents if the child decides his or her biological gender is not preferential,” Reeves continued.

“School personnel would be forced to abide by the student’s wishes if the student chooses not to involve his or her parents,” but it’s “parents (who) retain a constitutionally protected right to guide their own children on matters of identity, including the decision to adopt or reject various gender norms and behaviors.”

The rule was challenged by Republican attorneys general in Kentucky and five other states in April. Aside from Kentucky, Reeves’ opinion enjoined the rule in five other states: Tennessee, Ohio, Indiana, Virginia and West Virginia.

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Kentucky Attorney General Russell Coleman sued the U.S. Department of Education earlier this spring, contesting the “outrageous” rule change to Title IX that amended the definition of sex-based discrimination to include protections for LGBTQ+ people.

These six states, and others that have mounted similar challenges, say they are striving to defend equal opportunities in education and athletics for women. By rewriting Title IX, it would “put entire generations of young girls at risk,” Coleman said in late April.

Coleman celebrated Reeves’ decision, saying he “joined this effort to protect our women and girls from harm,” adding that it makes clear the Biden Administration’s “attempt to redefine ‘sex’ to include ‘gender identity’ is unlawful and beyond the agency’s regulatory authority.”

Coleman then referred to trans women as “males identifying as females,” saying if the new rule were allowed to take effect, it “would have required K-12 schools, colleges and universities to allow males identifying as females access to women’s sports, bathrooms and locker rooms.”

Living with gender dysphoria — when a person’s gender identity conflicts with their sex assigned at birth — is a clinically recognized, legitimate identity.

Medical and therapeutic interventions to affirm that identity are considered the scientifically evidence-based standard of care, agreed upon by major medical associations, including the American Academy of Pediatrics, the American Psychological Association and the American Medical Association.

Advocate: ruling ‘dripping in ignorance’

Chris Hartman, executive director of the Kentucky Fairness campaign, said Reeves’ decision to enjoin is “incredibly disappointing” and “dripping in ignorance around who trans kids are and the LGBTQ community as a whole.”

“Generally across the country, courts have been moving toward acceptance, understanding and inclusion of transgender kids,” he said. “I have faith that as this case continues to move through the process we will see a more favorable outcome that acknowledges and respects trans kids and their inclusion in all aspects of school life.”

Other changes included in the new rule broaden the types of misconduct that institutions are required to address. It also would have granted more protections to students who bring accusations of misconduct.

The changes also include a wider definition of sexual harassment. According to the Associated Press, schools would have to address any unwelcome sex-based conduct that is so “severe or pervasive” that it limits a student’s equal access to an education.

Michael Frazier, a Republican and LGBTQ rights activist who founded the Kentucky Student Rights Coalition, celebrated Reeves’ ruling largely in response to the non-LGBTQ portions of the rule changes. He opposed the rules’ effect on accused students’ rights to a live hearing to contest misconduct allegations, to cross-examine one’s accuser and to legal representation in certain circumstances and more.

He also claimed the rule would have had a negative effect on free speech.

“The regulations replace the 2020 regulations’ definition of student-on-student harassment with a more expansive, less speech-protective definition that departs from Supreme Court precedent,” Frazier wrote. “Thanks to the wonderful work of AG Coleman, the constitutional rights of Kentucky’s college students shall remain protected by the Kentucky Campus Due Process Protection Act and Biden’s unconstitutional Title IX will not be enforceable in Kentucky.”

Monday’s ruling comes as other states have seen the same portions of Title IX blocked.

Last Thursday, a federal judge in Louisiana declared that Title IX “was written and intended to protect biological women from discrimination,” and called the rule “an abuse of power.”

In his opinion, Reeves called the U.S. Department of Education’s implementation of the new rule “arbitrary and capricious.”

“The Department fails to provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex . . . Notably, the Department does not provide a sufficient explanation for leaving regulations in place that conflict with the new gender-identity mandate, nor does it meaningfully respond to commentors’ concerns regarding risks posed to student and faculty safety,” Reeves wrote.

GOP-led momentum to revoke rights of trans youth, particularly, was a theme of both the 2023 Kentucky General Assembly’s legislative session and the November election.

In the hefty Senate Bill 150 last year, the Republican supermajority legislature banned health care providers from legally offering gender-affirming health care to trans individuals under age 18, such as prescription hormone therapy and puberty blockers.

Kentucky medical providers at the time repeatedly warned lawmakers of the harm such a ban would bring upon an already marginalized population.

The bill also restricted classroom teaching about gender identity and human sexuality, prevents districts from mandating or recommending that teachers use a trans students’ preferred pronouns and prohibits trans students from using the restroom that corresponds with their gender identity.

The year before, in 2022, Republicans led the charge to ban trans girls from playing on middle and high school girls’ sports. teams.

Both were topics several Republicans seeking statewide constitutional offices spotlighted in their 2023 campaigns ahead of the November election, including former Attorney General Daniel Cameron, who unsuccessfully tried to unseat Democratic Gov. Andy Beshear

Cameron leaned heavily on anti-trans rhetoric, vowing often to “protect” women’s sports and protect kids from “transgender surgeries.

Cameron’s running mate, state Sen. Robby Mills, R-Henderson, also championed these policies.

Mills was lead sponsor of the bill to ban trans girls from competing in girls’ sports, and he praised the Title IX reversal Monday.

“As the sponsor of the ‘Save Women’s Sports Act,’ I view today’s ruling as further affirmation of the necessity of legislation championed by the Republican supermajorities in the Kentucky General Assembly and defended by our Republican attorney general,” he said in a statement.