DOJ quietly making moves in appeals over Biden's Title IX trans student protections

The Title IX sex discrimination rule was challenged largely those trans protections. Now, DOJ is taking a series of steps that could make life less safe for those kids.

While new policies are getting the headlines, the Justice Department is also methodically taking actions to end certain litigation that had been brought by or against the Biden administration.

In the most extreme of these, the Justice Department’s actions are essentially agreeing with past challenges to Biden administration policies.

Not all of this is surprising, and some of it is expected, but the moves include changes that could make significant differences to people across the country. Some changes are prompted by client actions, while others reflect independent Justice Department judgments. Some raise questions about why the Justice Department is or isn’t taking certain actions.

To put it bluntly, though, figuring out what’s happening here can be tricky. As such, and because this is happening in several areas, I want to take you through just one set of cases to show what can happen — and the questions it can raise.

Last week, the Trump administration took actions in several cases to dismiss appeals of lower court decisions challenging the Biden administration’s Title IX sex discrimination rule. The rule was challenged by multiple states, as well as a handful of other governmental entities and some organizations, largely due to three provisions that provided protections for transgender students. In all but one case, the challengers won below, and the losing side appealed.

The Trump administration — with its aggressive anti-trans positions — is not going to take the same position as the Biden administration on this rule or litigation. A series of actions, though, suggest more: strategic steps being taken to solidify anti-trans rulings.

Appeals brought by the Justice Department last year are being dismissed by stipulation — similar to the action taken by the Justice Department, and covered at Law Dork, to end the emergency abortion care lawsuit brought by the Justice Department in the Biden administration against Idaho.

In other instances, the Justice Department is taking different steps — or no steps at all. The only commonality that I can find in all of these moves relating to the Biden administration’s Title IX rule is that DOJ is taking the position, action, or inaction that could create the worst legal landscape for trans students going forward.

First, the joint dismissals. Here is one such filing¹ in an appeal at the U.S. Court of Appeals for the Fifth Circuit of a Title IX rule challenge where the states had secured a preliminary injunction below:

And, just like that, the appeal was dismissed:

Similar actions happened in other cases in the Fifth Circuit and Tenth Circuit. All of these were filed between March 12 and 14.

And yet, a day before that, in the Sixth Circuit, DOJ filed a different letter on March 11 in a challenge led by Tennessee that shed some light on what was going on — noting that a final judgment had been reached in the district court case there on January 9 and the time to appeal had passed on March 10.

As such, David Peters, an appellate attorney in the Justice Department’s Civil Division who had been defending the rule, told the Sixth Circuit that DOJ hadn’t appealed the loss below and that the appeal of the preliminary injunction is now moot and must be dismissed:

Although this one required court action, it too was dismissed — for lack of jurisdiction.

What this means that the final judgement in the case stands (although there could be a dispute about would-be intervenors whose intervention the district court judge denied as moot).

Under that final judgment, the Title IX rule was vacated.

In other words, one judge tossed out the rule to nationwide effect and, with DOJ no longer defending the rule in appeals, the rule would be done. And, importantly, if the Biden administration’s rule is vacated, the Education Department doesn’t need to take the time that otherwise would be required under the Administrative Procedure Act to rescind or alter a rule, with the possibility of new litigation.

And that’s exactly what happened. On the Education Department’s website currently, it states: “On January 9, 2025, a federal district court issued a decision vacating the 2024 Final Rule. The Department's 2020 Title IX Rule is now back in effect and is the basis for [Office of Civil Rights] enforcement of Title IX.“

But — and here is a further way changes are happening — there is one case where this “throw the appeals out” effort doesn’t quite work for opponents of trans rights. In a case pending at the Eleventh Circuit, tossing out the appeal would leave in place the one district court preliminary injunction ruling that had rejected a challenge to the Title IX rule.

There, notably, DOJ has said nothing. But, twice now since the start of the Trump administration, lawyers who had been fighting the Biden administration rule have asked the Eleventh Circuit to keep the appeal going — arguments were heard in December 2024 — and issue a ruling on it.

Cameron Norris, a partner at Consovoy McCarthy, wrote on January 24 to note the final judgment in the Tennessee-led case and President Donald Trump’s January 20 executive order purporting to define “sex” for the federal government. “Plaintiffs do not think these events should stop the Court from reversing the district court on an ‘expedited’ basis,” though, Norris wrote. “But in the interest of candor and because the Department hasn’t yet apprised the Court of these events, Plaintiffs will do so.“

Then, on March 12, as the other filings were happening in the Fifth and Tenth Circuits, Norris sent a second letter, noting that the appeal deadline — mentioned in the first letter — had passed, but discussing a second final judgment and how intervenors in either case could seek appeals that “could take years to resolve” (italics, remarkably, in original). Keep the appeal, Norris concluded: “Plaintiffs believe this Court should decide this appeal; and they oppose any efforts to hold it in abeyance.“

Again, over the past two months, the Justice Department has filed nothing with the Eleventh Circuit — no filing noting a change of position or even a notice that the administration is considering a change in position. Nothing. In an appeal, meaning that a ruling would create precedent for the whole circuit (consisting of Alabama, Florida, and Georgia) — and it’s a circuit that has issued several anti-trans rulings, including from the full court sitting en banc, in recent years.

Here, then, it appears that DOJ is letting the plaintiffs in a case against the federal government file letters urging an appeals court hostile to trans rights to decide the one appeal in which the government had won below — while agreeing to dismiss appeals in every case where the federal government had lost below.

1. The dismissal stipulation and order links and images have been corrected and replaced. The wrong case — a related issue and they didn’t look very different, but they were the wrong ones — was used in the original.