In a surprising 5 to 4 opinion released late on Friday, August 16, the Supreme Court of the United States (SCOTUS) blocked the Biden Administration’s updated Title IX rules that would, if they go into effect, require all schools that receive public funding to allow transgender students into girls’s bathrooms, locker rooms, and sports.
As background, the updated Title IX rules expanded “sex” to include both “sexual orientation and gender identity.” Particularly, it expanded Title IX to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”That update then prohibited school discrimination based on gender identity and orientation, thus leading to the bathroom and sports issue. They went into effect in 24 states across America, along with hundreds of other schools, on August 1.
In its ruling, which totaled 12 pages, SCOTUS granted a temporary stay of the new Title IX guidelines. In doing so, it ruled against the Biden Administration, which wanted it to sever the sexual orientation and gender identity portions of the new rules form the rest of the guidelines, and allow the rest to go into effect.
Those remaining rule changes have to do with rewriting changes made by the Trump Administration. The Trump Administration had introduced more due process protections for students who are accused of sexual assault. The Biden Administration then, in its new guidelines, removed those due process protections.
SCOTUS found that “the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule,” and thus that the new gender and sexual orientation parts of the rules could not be severed from the portion of the rule change having to do with due process for those accused of sexual assault.
Those states that had brought suit against the rule change claimed, SCOTUS noted, that the changes exceeded the rulemaking authority granted by Congress. As the ruling provided, “Several States and other parties sought preliminary injunctions against the new rule, arguing among other things that the rule exceeded the bounds of the statutory text enacted by Congress.”
Describing the fight over severability, SCOTUS wrote, “But the Government argues (and the dissent agrees) that those provisions should be severed and that the other provisions of the new rule should still be permitted to take effect in the interim period while the Government’s appeals of the preliminary injunctions are pending in the Courts of Appeals. The lower courts concluded otherwise because the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule.”
Continuing, it noted, “Those courts therefore concluded, at least at this preliminary stage, that the allegedly unlawful provisions are not readily severable from the remaining provisions. The lower courts also pointed out the difficulty that schools would face in determining how to apply the rule for a temporary period with some provisions in effect and some enjoined.”
It then said, “In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule.”
It also said, returning to the issue of severability and what, if anything, could remain in effect, “Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.”
Former President Trump has apparently promised to rescind the rule change if elected. According to Clay Travis, “President Trump just pledged to all of us on @clayandbuck that men will not be allowed to compete against women in sports when he is elected president. He promises to take care of it on day one and end Kamala and Biden’s new Title IX policies allowing this to happen.”
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