Trump-heavy courts block Biden LGBTQ school protections in many states

Courts had been increasingly protecting gender identity and sexual orientation discrimination as types of sex discrimination. Then came the Trump appointees.

The effect of the Trump judicial appointees on the federal courts has been clear in recent years. The stark reality of how sex discrimination protections are viewed by many of those judges — and some of their fellow far-right appointees — has enabled a particularly dramatic and wholesale reversal of long-building views that such laws protect LGBTQ people as well.

In the past three business days, three federal courts have issued decisions blocking the Biden administration’s efforts to protect LGBTQ students from discrimination in the nation’s schools under Title IX of the Education Amendments Act of 1972.

The are around a dozen cases challenging two Biden administration Title IX actions — guidance documents issued by the Education Department in 2021 and a Final Rule the department published in late April that is due to go into effect on August 1. This is about four of those cases, primarily — but also how all of them go to show what a precarious moment we and our courts are in.

As of now, the Biden administration’s guidance documents are blocked in 21 states and the Final Rule is preemptively blocked in 10 states — Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia — with more rulings, as well as appeals, expected in short order. Other challenges raise questions of the Final Rule’s enforcement in Alabama, Arkansas, Florida, Georgia, Iowa, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, and Texas.

The three most recent rulings — along with last week’s similar ruling out of Texas — each have distinct aspects, both in the underlying cases and the decision. Taken together, though, the rulings highlight a continued but dramatic legal shift rightward that has come out of Trump-infused lower courts in recent years. Here, it is specifically in interpreting whether sex discrimination bans include protections against discrimination based on sexual orientation and gender identity.

For some time, beginning as early as 2004, courts and federal agencies had been increasingly recognizing that gender identity discrimination and sexual orientation discrimination are types of sex discrimination for various reasons. Put the other way, protections against sex discrimination — whether by law or under the Constitution — were increasingly found to include protections against sexual orientation discrimination and/or gender identity discrimination.

This culminated with the U.S. Supreme Court’s 2020 6-3 decision in Bostock v. Clayton County, where Justice Neil Gorsuch held that Title VII’s sex discrimination provisions bar firing a person based on their sexual orientation or gender identity.

When President Biden came into office, the administration — starting with an executive order literally issued on day one — began advancing an effort to apply that understanding and definition of sex discrimination across the federal government. (This, to a lesser degree, had first begun in the Obama administration, following similar rulings from the Equal Employment Opportunity Commission. The Bostock ruling, however, much more clearly establishes the principle given its source.)

And yet, the conservative imbalance of the federal courts — particularly when combined with the increased political salience of anti-transgender politics on the right — has changed what looked at one point to be a fairly noncontroversial effort to make the law reflect modern understandings of sex and gender.

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The legal big picture

The effort by those on the right to turn anti-transgender sentiments in particular into legislation and other government actions has been clear in politics and statehouses.

There was a sign of this change moving to the courts last year as challenges to bans on gender-affirming medical care for minors hit the federal appeals courts. At the district court level, even in front of Republican appointees, the laws were blocked — because precedent made that result seem clear even to those who might otherwise have been sympathetic to the laws. But then, once they reached more partisan and ideological appeals courts, two appeals courts — the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Eleventh Circuit — have let bans go into effect while litigation proceeds, holding that the laws are likely constitutional.

These Title IX challenges, though, are showing a wholesale reversal of law right from the district court level — often in a dismissive way that simply avoids the entire legal underpinning of that 2020 decision, Bostock, to reach a contrary conclusion.

As U.S. District Judge Terry Doughty wrote in one of the opinions, “Enacting the changes in the Final Rule would subvert the original purpose of Title IX: protecting biological females from discrimination.”

But, as U.S. District Judge Danny Reeves acknowledged in another opinion, “Title IX was patterned largely after the Civil Rights Act of 1964 …. Momentum for passing federal legislation prohibiting discrimination on the basis of sex began building later in the 1960s as congressional attention turned to remedying the disparate treatment of women in education and the workforce.”

It is true: Sex discrimination legislation was largely passed to address the discrimination women faced. Nonetheless, as then-Justice Antonin Scalia wrote in 1998 in holding for a unanimous Supreme Court that Title VII protects against same-sex sexual harassment:

As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

When Bostock got to the Supreme Court, that principle controlled yet again.

But now, lower court judges are apparently feeling empowered to disregard the clear direction in which the law has been going — because the Supreme Court has, in other circumstances, freely disregarded and reversed precedent.

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The Title IX litigation

After the Biden administration’s Education Department first issued guidance documents laying out its understanding that Title IX’s sex discrimination provisions ban sexual orientation and gender identity discrimination in entities that receive Title IX funds — which include most schools — there were some lawsuits. A preliminary injunction in a lawsuit out of Tennessee blocked the guidance documents in 20 Republican-led states. Last week, as I reported here, U.S. District Judge Reed O’Connor blocked the guidance documents as to Texas and its schools.

After the lawsuits began, the Biden administration took a second step — promulgating an extensive Title IX “Final Rule” that went through notice and comment rulemaking procedures. It contained much more than just the Bostock-related element. It also included revised sexual harassment rules, put in place sexual assault rules, and did much more in the 423-page rule. It was published April 29 and is scheduled to go into effect on August 1. At least nine challenges in five circuits followed.

Which brings us to the past three days. One appeals court weighed in on the guidance documents, and two district courts weighed in on the Final Rule — all siding with challengers to the policies.

The most restrained opinion — a 2-1 decision from the U.S. Court of Appeals for the Sixth Circuit — is important because it’s the first appeals court decision addressing the Biden administration’s Title IX policies, but also of limited relevance for two reasons. First, it is over the guidance documents, not the Final Rule. Second, it was decided on the basis of the plaintiffs’ procedural challenge — holding that, under the Administrative Procedure Act, the guidance documents were the type of “final agency action” that required full notice and comment rulemaking procedures. As such, the court did not rule on the question of whether the Biden administration’s interpretation of Title IX is allowed or correct.

Specially, Judge John Nalbandian, joined by Judge Joan Larsen — both Trump appointees — concluded in the June 14 ruling, “[W]e believe the States are likely to succeed in their claim that the Documents amount to a legislative rule and therefore should be set aside.” A legislative rule, he explained, would require notice and comment.

For Nalbandian, the fact that the Biden administration later did what he was holding they needed to do — full notice and comment rulemaking — is counted not as a plus for the administration but as evidence that “[t]he Department seemed to recognize that modification of its current regulations through notice-and-comment rulemaking was needed to effectuate its new reading of Title IX.”

Perhaps the most notable thing about the Sixth Circuit ruling is the dissenter: Judge Danny Boggs. Boggs is a 79-year-old Reagan appointee who has long been a conservative standard-bearer on the Tennessee-Kentucky-Ohio-Michigan appeals court.

Boggs did not believe these documents constituted final agency action, far from it. To the contrary, he wrote, “The Documents here are paradigmatic interpretations,” not subject to notice and comment rulemaking. Later, he explained more why that is so, writing, “[T]he Documents explain legal obligations; they do not create them. They consistently speak of what the Department believes Title IX requires, not what the Documents themselves require.”

He is, of course, right. It’s remarkable that a conservative Reagan appointee said so and was nonetheless outvoted because of the duo of Trump appointees on the panel.

That, though, was the most reasoned and reasonable of the three opinions to have come down over the past three business days. The other two, moreover, address the Final Rule — so they are rulings that the Justice Department almost certainly will be appealing.

On June 13, Doughty, a Trump appointee in the Western District of Louisiana, issued a ruling akin to O’Connor’s ruling from June 11 — but somehow worse. Doughty is perhaps best (worst?) known for his extensive ruling handed down on the Fourth of July in 2023 that purported to block thousands of people in the Biden administration from talking with anyone at social media companies about a variety of ordinary matters.¹

Doughty’s ruling does not shy away from Bostock — but it ultimately just ignores it because, he found, Title IX is really about protecting women in a way that renders Bostock’s Title VII ruling irrelevant — and, in fact, contradictory.

“Finally, this Court finds that the application of Bostock and the Final Rule’s definition of ‘sex discrimination’ contradict the purpose of Title IX,” Doughty wrote. “Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.”

That, however, is not the bottom. Reeves, a George W. Bush appointee in the Sixth Circuit — where the gender-affirming medical care case and, now, the guidance documents case are precedent — dove way into the deep end of the pool in his decision issued on Monday.

More than just handling Bostock dismissively, Reeves all but credits Justice Sam Alito’s dissent in his opinion. “Justice Alito, with whom Justice Thomas joined, issued a compelling dissent which proclaimed the majority’s opinion de facto legislation,” Reeves wrote in beginning a two-paragraph section on the “compelling” dissent.

Ultimately, both Doughty and Reeves blocked the Final Rule as to the states before them on multiple grounds — with Reeves relying in part on Doughty’s decision to do so.

“Like the district court in Louisiana, the undersigned is not persuaded that the ordinary meaning of sex includes subjective gender identity,” Reeves wrote in finding that “the Department exceeded its statutory authority in redefining ‘on the basis of sex’ for purposes of Title IX.“

Like O’Connor, both of them reach a conclusion that the Education Department applying the Bostock reasoning to Title IX is “redefining” law — something that would have rendered Bostock an impossibility. More importantly, that was precisely what Clayton County argued — and Alito wrote in dissent — in opposing the Title VII ruling.

In addition to the claim that the Education Department exceeded its authority, both Doughty and Reeves also found that the major questions doctrine and Spending Clause clear statement rule apply here, and that the rule is “arbitrary and capricious” in violation of the APA.

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A First Amendment note

Finally, although Doughty just gives it passing reference over two pages, Reeves gives full analysis to the challengers’ First Amendment claims, with both judges finding that the rule likely violates the First Amendment. Reeves did so, he wrote, because the Final Rule “compels speech and otherwise engages in viewpoint discrimination” — primarily due to concerns that he ultimately credits about teachers being forced to refer to trans students by their proper pronouns.

Reeves spent several pages delving into high-mined historic principles of free speech before diving into the specifics of an earlier Sixth Circuit ruling — from a panel of two Trump appointees and a George W. Bush appointee — addressing a university’s treatment of a professor’s refusal to recognize a transgender student by her proper pronouns.

In finding that the rule would likely compel speech, Reeves wrote, “The Department’s Final Rule forces the Nation’s schools and educators to convey a message ordained in Washington, D.C., while silencing dissenting opinions and undermining state law and the discretion of local school boards.” He then cited Tennessee law and noted that “Tennessee teachers are not compelled to communicate the message that ‘[p]eople can have a gender identity inconsistent with their sex at birth’” — quoting the opinion of Judge Amul Thapar in the earlier Sixth Circuit case.

Reeves concluded, “The Final Rule only suppresses one side of the debate, strangling the marketplace of ideas in a way that is uniquely harmful to a free and democratic society.”

One side of the debate over whether a trans student can, in actuality, exist.

[This section is short, but I do hope to be able to go into more detail about the First Amendment claims in a later post as these and other challenges proceed.]

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In conclusion

The U.S. Supreme Court had much of this debate already and issued a ruling back in 2020: Bostock.

Alito lost. His dissenting opinion was not “compelling.”

But, in the current moment, it and similar logic in other areas of the law has been good enough to lead Doughty and Reeves to block the Biden administration’s rule in 10 states.

These orders will certainly be appealed, but there will be more and this is going to be an ugly fight. Over an effort to keep children safe in schools. By using a legal interpretation that had been marching forward with support from liberals and conservatives alike for the past 20 years.

1. The was too far even for the U.S. Court of Appeals for the Fifth Circuit, which narrowed the injunction. What they left, however, was still enough for the Supreme Court to hear on appeal. The case, Murthy v. Missouri, remains pending.