President Joe Biden attempted to do what he can’t do legislatively when it comes to fairness and privacy for girls and women: allow boys and men to compete on their sports teams and enter their private spaces. He ordered the U.S. Department of Education — also part of the executive branch — to interpret Title IX, Education Amendments of 1972, which bars discrimination on the basis of sex, as also barring discrimination based on sexual orientation and “gender identity.”
To change legislation and redefine words requires an act of the legislative branch, not the executive branch.
A Supreme Court with six conservatives handed the Biden administration a gift in the form of Bostock v. Clayton County (2019). The court held that employers can’t fire employees for being homosexual or pretending to be the opposite sex. The Biden administration has cited this ruling to justify mandating that boys be allowed access to girls’ private facilities like bathrooms, locker rooms, or other changing rooms — even though the court in Bostock said that the decision did not address Title IX.
A coalition of 20 states attorneys general, led by Tennessee, sued the federal government over its re-interpretation of the federal code. The court on Friday granted the coalitions’ request to temporarily block the rule. The coalition argued that the authority to make such changes to the law belongs to Congress, the states, and the people, and that the Biden administration violated the Administrative Procedure Act.
The court agreed (PDF) with the coalition that Bostock addressed only sex discrimination under the employment statute, not education. “…the Supreme Court expressly declined to ‘prejudge’ how its holding would apply to ‘other federal or state laws that prohibit sex discrimination’ such as Title IX…Similarly, the Supreme Court explicitly refused to decide whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ violate Title VII.”
“The District Court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences including the withholding of federal funding- or altering our state laws to comply,” Attorney General Herbert H. Slatery III said. “Keep in mind these new, transformative rules were made without you- without your elected leaders in Congress having a say, which is what the law requires. We are thankful the Court put a stop to it, maintained the status quo as the lawsuit proceeds, and reminded the federal government it cannot direct its agencies to rewrite the law.”
The court said (PDF) the preliminary injunction will remain in place “pending the final resolution of this matter, or until further orders from this Court, the United States Court of Appeals for the Sixth Circuit, or the Supreme Court of the United States.”