KANSAS CITY, Kansas (BP) — Oklahoma public middle school student K.R. refused to use the bathrooms at school, fearing she’d encounter a biological male who perhaps identified as female in one of the stalls she described as poorly separated by partitions.
In the 500-student school, she knew of some 30 boys who identified as girls, and about 60 or 70 students who identified as transgender or nonbinary, she said in an affidavit in the case of the State of Kansas et al v. the U.S. Department of Education, in which K.R.’s mother Shawn Rowland was included as a plaintiff on her behalf.
Describing herself as a Christian, K.R. also feared possible retaliation if she shared her view that “God created everyone to be either male or female.”
K.R.’s situation only changed in 2022 when Oklahoma passed a law requiring students to use bathrooms aligning with their biological gender, but a new federal rule expanding Title IX sex discrimination protections to include gender identity would have once again forced K.R. to share bathrooms with boys.
U.S. District Judge John Broomes gave K.R. relief July 2 by issuing a preliminary injunction halting the federal rule’s enforcement in several states while a multiparty lawsuit makes its way through the courts, issuing a ruling in favor of plaintiffs including Rowland, the states of Kansas, Alaska, Utah and Wyoming; national advocacy groups Moms of Liberty, Young America’s Foundation and Female Athletes United, and any school system where members of those groups have children enrolled in public school. An untold number of schools will be impacted.
The Education Department acted “arbitrarily and capriciously” in promulgating the rule, Broome said, adding that “even if the agency had the authority to alter the Title IX standard in this manner, the court must set aside agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.,’” quoting precedent.
At issue is the U.S. Department of Education’s rule, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” that would have extended to LGBTQ students the same protections Title IX extended to women, requiring schools receiving public funds to avoid discrimination against students based on their gender identity.
The rule impacts more than bathroom use, but would require schools to make several changes including allowing students to participate on sports teams aligning with their gender identity, requiring schools to address students by their preferred pronouns, and classifying various actions as sex discrimination, although the rule doesn’t define which acts would qualify as harassment.
Broomes’ injunction is the third court decision since June blocking the rule’s enforcement, and comes as several other challenges to the rule await their day in court, according to news reports.
Prior to Broomes’ decision, two court rulings levelled the combined impact of preventing the rule’s enforcement in Kentucky, Indiana, Ohio, Tennessee, Virginia, West Virginia, Idaho, Louisiana, Mississippi and Montana. It remains unclear which states will be required to enforce the rule by the time it becomes effective.
Plaintiffs challenged the rule as contrary to the plain text of Title IX, unconstitutional, arbitrary and capricious.
Defendants said the rule is consistent with Title IX, constitutional, well-reasoned and logical.
New Jersey filed an amici brief in support of the Department of Education and on behalf of several states including California, Pennsylvania, Colorado, Delaware, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington, in addition to the District of Columbia.
The Biden administration’s expansion or clarification of Title IX to include gender identity is only the latest time Title IX has been expanded since it’s 1972 passage. Prior expansions required equal treatment in sports and issued rules protecting women from sexual harassment.
But in expanding Title IX, the Education Department took it upon itself “to answer questions that have prompted significant debate at both the state and federal levels in recent years,” Broome said. “Further, the Final Rule represents an enormous invasion into the sphere of education, which has traditionally been an area where States have been sovereign.”
Combined, schools could lose perhaps billions of dollars by refusing to implement the rule, Broome said of its reach, and that states would be required to spend significant sums to improve facilities to comply with the rule.
