Louisiana and Tennessee are urging the Supreme Court to reject the federal government’s request to protect Title IX while lower courts weigh whether the anti-discrimination law gives transgender students the right to use locker rooms and bathrooms of their choice.
Louisiana told the justices that the Education Department’s rule, issued this year, rewrites sex-based discrimination to include transgender regulations and would require schools to quickly review and reform their policies.
The feds had petitioned the justices to narrow two injunctions issued by lower courts against transgender-friendly changes announced by the Biden administration in April to Title IX, the law that prohibits discrimination in government-funded education programs.
“The government’s partial stay would be harmful in itself,” wrote lawyers for Louisiana in their filing. “Schools would have to work out how the rule functions without its key provisions, amend their policies and train their staff accordingly — all by next week — and then do it again after judicial review.”
Lawyers for Tennessee said in their filing that it is “no wonder” 26 states have challenged the department’s move in six legal battles.
“The rule adopts a controversial worldview about ‘gender identity,’ orders schools in every state to conform their policies to it, and threatens dissenters with the loss of billions in federal funding,” Tennessee’s filing read.
A school would run afoul of the new rule for letting biological male students use female facilities, join female sports teams, not use a preferred pronoun and express “offensive” views on same-sex marriage, transgender ideology or abortion.
The states challenged the Biden administration’s revised rule, and two lower courts, the Western District of Louisiana and the Eastern District of Kentucky, reasoned that states could likely succeed with their moves. The courts issued a broad injunction that halted the Education Department from enforcing the rule in the states involved in the litigation.
But the department warns that the injunctions could block more of Title IX than intended, including provisions that protect record-keeping requirements and pregnant and postpartum students and employees.
U.S. Solicitor General Elizabeth Prelogar, on behalf of the Education Department, asked the justices to narrow the injunctions to the gender-identity provisions related to discrimination, harassment and transgender students using separate facilities as the litigation works its way through the courts.
The states involved in the litigation with Louisiana are Mississippi, Montana and Idaho.
The states linked to Kentucky are Tennessee, Indiana, Ohio, Virginia and West Virginia.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.