The Biden administration's Title IX regulation redefining "Sex" as inclusive of gender identity, with wide-ranging implications for access to school restrooms and athletic teams, free-speech rights of students and teachers and federal funding of education, is having a much tougher time in court than its predecessor's more limited rulemaking.
Reeves gave lengthy history lessons on both the lead-up to Title IX - including higher admissions standards for women and especially discrimination against married women - and subsequent statutory revision to explicitly apply Title IX to "Intercollegiate athletics," as well as the American founders' dedication to freedom of speech as the bedrock of the new nation.
"The logic of Title IX was sound, the execution was flawless, and the application has had stellar results for years." Doughty determined the SCOTUS precedent Bostock, on gender identity in employment, does not apply to Title IX or school contexts.
The feds argued this despite the majority explicitly stating "We do not prejudge" whether their ruling expands beyond Title VII of the Civil Rights Act or even covers "Bathrooms, locker rooms, or anything else of the kind" in Title VII, he noted.
Adding gender identity to sex "Would essentially reverse the entire premise of Title IX, as it would literally allow biological males to circumvent the purpose of allowing biological females to participate in sports that they were unable to participate in prior to 1975," while creating "Surplusage" by rendering "Meaningless" sex-segregated exemptions in Title IX, he said.
"The abuse of power by administrative agencies is a threat to democracy." Reeves' ruling is more than twice as long as Doughty's but reaches similar conclusions about violations of the Administrative Procedure Act, First Amendment and Title IX itself, including the inapplicability of Bostock beyond Title VII and turning the law "On its head." The new definition of "Sexual harassment" may require educators to use students' preferred pronouns without consideration of "Religious or moral beliefs," which amounts to compelled speech and "Viewpoint discrimination," Reeves wrote.
The regulation even goes beyond school campuses, requiring school employees under Title IX to act whenever they have "Information about conduct among students that took place on social media or other platforms" that may create "a sex-based hostile environment," and the feds poorly defended it, according to the judge.
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