A federal judge temporarily blocked the Biden administration Tuesday from making Wyoming enforce a new rule allowing males identifying as female into girls’ school locker rooms and bathrooms.
“The government’s edicts result in the subordination of the interest of non-transgender students — many of whom are minors — in free speech, privacy and safety to the interests of transgender students in expressing and conducting themselves in accordance with their individual notions of gender identity,” wrote U.S. District Court Judge John W. Broomes in his order blocking the rule.
An interpretation of Title IX, the federal civil rights in education law, the new rule under President Joe Biden’s Department of Education was set to go into effect Aug. 1.
It would have penalized federally funded schools or people in them for not allowing transgender girls from accessing girls’ locker rooms and bathrooms, and may have penalized people for using pronouns like “he” and “him” to refer to a male who identifies as a girl, for example.
Broomes blocked the rule from going into effect in Wyoming, Alaska, Kansas and Utah — as well as several schools nationwide that other plaintiffs and their children attend — while the case against it is ongoing.
He ruled that Wyoming and the other plaintiffs are likely to win their case and get a permanent block on the rule.
Broomes’ injunction is not the first of its kind this year.
Another federal court blocked the rule from going into effect in Louisiana, Montana, Mississippi and Idaho, while a third blocked it in Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.
Conversely, the states of New Jersey, California and Pennsylvania filed a brief arguing on the federal government’s behalf that the rule should go into effect.
New Jersey ‘Astonished’ At Wyoming
The rule is meant to protect LGBTQ students and prohibit sex discrimination based on gender identity and sexual orientation, the Department of Education has said.
The New Jersey brief echoes that assertion.
“We will keep fighting to protect gender-diverse students, who suffer worse health and educational outcomes when they are not supported in schools, and against sex-based discrimination in all its forms,” New Jersey Attorney General Matthew Platkin announced when he filed the argument.
He voiced shock at Wyoming’s stance, saying: “Fair and nondiscriminatory treatment of all students leads to better outcomes, including reduced suicidal ideations, fewer suicide attempts, and enhanced well-being and functioning. It is astonishing to me that this is still a matter of debate among certain states.”
Judge Found Flaws
But Broomes found several flaws with the Biden administration rule that make Wyoming and the other plaintiffs likely to win the case, his Tuesday order says.
First, because the rule could place transgender students’ new access rights above privacy concerns of girls and women, it contravenes the original purpose of Title IX, which was written in 1972 to protect women from discrimination in schools, Broomes wrote.
The Department of Education had based some of its reasoning on Bostock v. Clayton County, a landmark 2020 case in which the U.S. Supreme Court said firing someone for being gay or transgender amounts to sex discrimination under a different federal law, Title VII.
Besides involving a different statute, “Bostock expressly disavowed its application to bathrooms and showers under Title VII (so) it certainly has no application to bathrooms and showers under Title IX,” wrote the judge.
He called Bostock a “live-and-let-live decision” regarding the lives of consenting adults outside of the workplace.
The Department of Education wrote the rule to exceed the limits of Title IX, Broomes’ order says.
Other Flaws
The rule also violates the Spending Clause (a concept that the federal government’s funding conditions should be tied to the purpose of the funds), violates the First Amendment, and is arbitrary and capricious, Broomes decided.
He toyed with the idea of blocking the rules from going into effect nationwide, but said it would be safer to only block them in the plaintiffs’ schools since there are states actively campaigning for those rules to go into effect, and there are cases pending in other courts.
Chevron Already In Play In Wyoming
Broomes pulled from a landmark U.S. Supreme Court case issued Friday, which has massive implications for Wyoming: Loper Bright v. Raimondo.
The decision overturned the 40-year-old “Chevron” precedent, which had instructed courts to award the tie in unclear law disputes to the federal government.
Title IX delineates between male and female when it discusses “sex,” Broomes wrote, and called the law “unambiguous.”
But even if that language were unclear, Broomes would not let the federal government win the dispute by default because of the Loper Bright ruling, he wrote.
Sports, Maybe?
Gov. Mark Gordon celebrated the preliminary injunction Wednesday.
“I never had any doubts that we would prevail in our efforts to thwart this,” Gordon wrote in a post to X.com (formerly Twitter. “This rule undermines – among other things – the core principles of fairness in women’s sports. Wyoming will always fiercely protect the rights of our female athletes.”
But the sports question remains unclear. The final rule didn’t outline sports policies specifically, and the government’s attorney indicated at the oral argument in this case that the rule wouldn’t impact state laws banning transgender boys from girls’ sports.
But other administration statements indicate that the department is trying to impact sports as well, the ruling says.
Clair McFarland can be reached at clair@cowboystatedaily.com.
