Federal judge halts rush to redefine sex

The temporary injunction issued yesterday against the Obama administration’s transgender directive to public schools extends beyond Texas, putting a stop to all federal investigations under Title IX related to gender identity.

The injunction applies to the 13 states in the Texas-led lawsuit and 10 additional states that filed suit against the administration’s interpretation of Title IX. Claiming to give guidance for the “ambiguous” definition of the word “sex” in the 1972 federal anti-discrimination regulation, the departments of Education and Justice in May declared the word also includes “gender identity.” They ordered all public schools to allow students to use the restrooms and locker rooms that correspond with their gender of choice, rather than their biological sex.

In his order, District Judge Reed O’Connor said the Department of Education had “drawn a line in the sand” by compelling public schools and universities to toe that line or face penalties for noncompliance. The government’s expected appeal will send the case to the 5th U.S. Circuit Court of Appeals.

“The court finds that defendant’s rules are legislative and substantive,” O’Connor wrote. “Although defendants have characterized the guidelines as interpretive, post-guidance events and their actual legal effect prove that they are ‘compulsory in nature.’”

After examining a legal landscape littered with lawsuits stemming from the administration’s interpretation of Title IX, O’Connor determined schools that refused to comply put their federal funding at risk.

O’Connor noted the ongoing legal battles over transgender persons’ use of public restrooms in North Carolina and Virginia illustrated the federal government’s “guidance” has resulted in costly litigation and the assurance of a U.S. Supreme Court ruling on the meaning of the word “sex.”

And public K-12 schools aren’t the only ones worried about Title IX compliance. Facing the loss of federal funds or their religious and moral integrity, the presidents of seven South Carolina private Christian colleges have asked Gov. Nikki Haley to champion the cause of religious liberty for schools facing the Hobson’s choice of compliance or loss of funding.

Those schools, not connected with the Texas lawsuit, will get a temporary reprieve under O’Connor’s injunction, according Kayleigh Lovvorn, a spokeswoman for the Texas attorney general’s office.

“Further, while this injunction remains in place, defendants are enjoined from initiating, continuing, or concluding any investigation based on defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex,” O’Connor wrote.

Obama administration attorneys defended their guidance as a “valid” interpretation of the regulations that “do not carry the force of law.” They argued that because Title IX does not address transgender use of private facilities, “this situation presents an ambiguity in the regulatory scheme” allowing the federal agencies “to provide guidelines to federal fund recipients on this matter.”

But in his order O’Connor reiterated Title IX’s affirmation of the distinction between the sexes and its allowance for “separate but equal,” single-sex private accommodations.

The 44-year-old regulation is not ambiguous, O’Connor wrote. Neither is the irreparable harm claimed by the plaintiffs. The current and anticipated harm perpetuated by the “swift move to supplant the traditional, biological meaning of sex with a definition based on gender identity” and the agencies’ forced compliance convinced O’Connor the preliminary injunction was necessary to stave off further damage.

At the outset of his decision, O’Connor acknowledged the issue’s sensitive nature and said his ruling was not meant to resolve policy but to address its implementation. He said sensitivity to the matter was heightened because the agencies’ “actions apply to the youngest child attending school and continues for every year throughout each child’s education career.”

Drawing support for his opinion from a similar case likely to go before the U.S. Supreme Court, O’Connor cited 4th Circuit Judge Paul Niemeyer in G.G. v. Gloucester County School Board.

“In his dissent, Niemeyer characterized defendants’ definition as ‘illogical and unworkable,’” O’Connor wrote. “He outlined a number of scenarios, which need not be repeated here, where the defendants’ interpretation only causes more confusion for educational institutions. A definition that confuses instead of clarifies is unpersuasive.”